title-58•Title 58 — Waters and Water Supply
This act shall be known and may be cited as the "Water Supply Management Act."
The Legislature finds and declares that the water resources of the State are public assets of the State held in trust for its citizens and are essential to the health, safety, economic welfare, recreational and aesthetic enjoyment, and general welfare, of the people of New Jersey; that ownership of these assets is in the State as trustee of the people; that because some areas within the State do not have enough water to meet their current needs and provide an adequate margin of safety, the water resources of the State and any water brought into the State must be planned for and managed as a common resource from which the requirements of the several regions and localities in the State shall be met; that the present regulatory system for these water resources is ineffective and counterproductive; that it is necessary to insure that within each basin there exist adequate water supplies to accommodate present and future needs; that to ensure an adequate supply and quality of water for citizens of the State, both present and future, and to protect the natural environment of the waterways of the State, it is necessary that the State, through its Department of Environmental Protection, have the power to manage the water supply by adopting a uniform water diversion permit system and fee schedule, a monitoring, inspection and enforcement program, a program to study and manage the State's water resources and plan for emergencies and future water needs, and regulations to manage the waters of the State during water supply and water quality emergencies.
a. "Commissioner" means the Commissioner of the Department of Environmental Protection or the commissioner's designated representative;
b. "Consumptive use" means any use of water diverted from surface or ground waters other than a nonconsumptive use as defined in this section;
c. "Department" means the Department of Environmental Protection;
d. "Diversion" means the taking or impoundment of water from a river, stream, lake, pond, aquifer, well, other underground source, or other water body, whether or not the water is returned thereto, consumed, made to flow into another stream or basin, or discharged elsewhere;
e. "Nonconsumptive use" means the use of water diverted from surface or ground waters in such a manner that it is returned to the surface or ground water at or near the point from which it was taken without substantial diminution in quantity or substantial impairment of quality;
f. "Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a water supply facility, political subdivision of the State and any state, or interstate agency or Federal agency;
g. "Waters" or "waters of the State" means all surface waters and ground waters in the State;
h. "Safe or dependable yield" or "safe yield" means that maintainable yield of water from a surface or ground water source or sources which is available continuously during projected future conditions, including a repetition of the most severe drought of record, without creating undesirable effects, as determined by the department;
i. "Aquaculture" means the propagation, rearing and subsequent harvesting of aquatic species in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting, and providing for protection from predators. "Aquaculture" shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation;
j. "Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture;
k. "Six Mile Run Reservoir Site" means the land acquired by the State for development of the Six Mile Run Reservoir in Franklin Township, Somerset County, as identified by the Eastern Raritan Feasibility Study and the New Jersey Statewide Water Supply Plan prepared and adopted by the department pursuant to section 13 of P.L.1981, c.262 (C.58:1A-13).
a. Upon a finding by the commissioner that there exists or impends a water supply shortage of a dimension which endangers the public health, safety, or welfare in all or any part of the State, the Governor is authorized to proclaim by executive order a state of water emergency. The Governor may limit the applicability of any state of emergency to specific categories of water supplies or to specific areas of the State in which a shortage exists or impends.
b. The department shall, within 180 days of the effective date of this act, adopt an Emergency Water Supply Allocation Plan as a rule and regulation. This plan shall be utilized as the basis for imposing water usage restrictions during a declared state of water emergency and shall include a priority system for the order in which restrictions would be imposed upon the various categories of water usage.
c. During the duration of a state of water emergency the commissioner, to the extent not in conflict with applicable Federal law or regulation but notwithstanding any State or local law or contractual agreement, shall be empowered to:
(1) Order any person to reduce by a specified amount the use of any water supply; to make use of an alternate water supply where possible; to make emergency interconnections between systems; to transfer water from any public or private system; or to cease the use of any water supply;
(2) Order any person engaged in the distribution of any water supply to reduce or increase by a specified amount or to cease the distribution of that water supply; to distribute a specified amount of water to certain users as specified by the commissioner; or to share any water supply with other distributors thereof;
(3) Establish priorities for the distribution of any water supply;
(4) Adopt rules and regulations as are necessary and proper to carry out the purposes of this section; and
(5) Direct any person engaged in the retail distribution of water to impose and collect a surcharge on the cost of that water as a penalty for the violation of any order to reduce water usage issued pursuant to this subsection. The disposition of all sums collected pursuant to this subsection shall be as provided by law; and
(6) Otherwise implement the Emergency Water Supply Allocation Plan adopted pursuant to subsection b. of this section.
Any order issued by the commissioner pursuant to this subsection shall be based upon fair compensation, reasonable rate relief and just and equitable terms, to be determined after notice and hearing which may occur subsequent to the order and compliance therewith.
d. During the existence of a state of water emergency, the Governor may order the suspension of any laws, rules, regulations, or orders of any department or agency in State Government or within any political subdivision which deal with or affect water and which impede his ability to alleviate or terminate a state of water emergency.
e. Any aggrieved person, upon application to the commissioner, shall be granted a review of whether the continuance of any order issued by the commissioner pursuant to this section is unreasonable in light of then prevailing conditions of emergency.
f. During a state of water emergency the commissioner may require any other department or other agency within State Government to provide information, assistance, resources, and personnel as shall be necessary to discharge his functions and responsibilities under this act, rules and regulations adopted hereunder, or applicable Federal laws and regulations.
g. The powers granted to the Governor and the commissioner under this section shall be in addition to and not in limitation of any emergency powers now or hereafter vested in the Governor, the commissioner, or any other State department or agency pursuant to any other laws; except that, upon declaring a state of energy emergency, the Governor may supersede any other emergency powers.
h. The state of water emergency declared by the Governor pursuant to this section shall remain in effect until the Governor declares by a subsequent executive order that the state of water emergency has terminated.
The commissioner shall have the power to adopt, enforce, amend or repeal, pursuant to the "Administrative Procedure Act," P.L.1968, c. 410 (C. 52:14B-1 et seq.) rules and regulations to control, conserve, and manage the water supply of the State and the diversions of that water supply to assure the citizens of the State an adequate supply of water under a variety of conditions and to carry out the intent of this act. These rules and regulations may apply throughout the State or in any region thereof and shall provide for the allocation or the reallocation of the waters of the State in such a manner as to provide an adequate quantity and quality of water for the needs of the citizens of the State in the present and in the future and may include, but shall not be limited to:
a. A permit system to allocate or reallocate any or all of the waters of the State, which system shall provide for the issuance of permits to diverters of more than 100,000 gallons per day of the waters of the State, containing at a minimum the conditions required by this act;
b. Standards and procedures to be followed by diverters to ensure that:
(1) Proper methods are used to divert water;
(2) Only the permitted quantity of water is diverted and that the water is only used for its permitted purpose;
(3) The water quality of the water source is maintained and the water standards for the use of the water are met;
(4) The department is provided with adequate and accurate reports regarding the diversion and use of water;
c. Inspection, monitoring, reporting and enforcement procedures necessary to implement and enforce the provisions of this act;
d. Standards and procedures to be followed to determine the location, extent and quality of the water resources of the State and plan for their future use to meet the needs of the citizens of the State;
e. Standards and procedures to be followed to maintain the minimum water levels and flow necessary to provide adequate water quantity and quality;
f. Standards and procedures governing the maintenance of adequate capacity by, and withdrawal limits for, water purveyors.
(1) Permit privileges previously allowed pursuant to lawful legislative or administrative action, except that the department may, after notice and public hearing, limit the exercise of these privileges to the extent currently exercised, subject to contract, or reasonably required for a demonstrated future need. All diversion permits issued by the Water Policy and Supply Council prior to August 13, 1981 shall remain in effect until modified by the department pursuant to P.L.1981, c.262 (C.58:1A-1 et al.). Persons having or claiming a right to divert more than 100,000 gallons of water per day pursuant to prior legislative or administrative action, including persons previously exempted from the requirement to obtain a permit, shall renew that right by applying for a diversion permit, or water usage certification, as the case may be, no later than February 9, 1982. Thereafter, the conditions of the new diversion permit or water usage certification shall be deemed conclusive evidence of such previously allowed privileges.
(2) Require any person diverting 100,000 or more gallons of water per day for agricultural or horticultural purposes to obtain approval of the appropriate county agricultural agent of a five-year water usage certification program. This approval shall be based on standards and procedures established by the department. This program shall include the right to construct, repair or reconstruct dams or other structures, the right to divert water for irrigation, frost protection, harvesting and other agriculturally-related purposes, including aquaculture, and the right to measure the amount of water diverted by means of a log or other appropriate record, and shall be obtained in lieu of any permit which would otherwise be required by P.L.1981, c.262 (C.58:1A-1 et al.).
(3) Require any person diverting more than 100,000 gallons per day of any waters of the State or proposing to construct any building or structure which may require a diversion of water to obtain a diversion permit. Prior to issuing a diversion permit, the department shall afford the general public with reasonable notice of a permit application, and with the opportunity to be heard thereon at a public hearing held by the department.
b. In exercising the water supply management and planning functions authorized by P.L.1981, c.262 (C.58:1A-1 et al.), particularly in a region of the State where excessive water usage or diversion present undue stress, or wherein conditions pose a significant threat to the long-term integrity of a water supply source, including a diminution of surface water supply due to excess groundwater diversion, the commissioner shall, after notice and public hearing as provided by and required pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), designate that region as an area of critical water supply concern.
In designating an area of critical water supply concern, the department shall be required to demonstrate that the specific area is stressed to a degree which jeopardizes the integrity and viability of the water supply source or poses a threat to the public health, safety, or welfare. This designation shall conform to and satisfy the criteria of an area of critical water supply concern as defined in rules and regulations adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
Those specific areas previously designated by the department as water supply critical and margin areas, considered as Depleted or Threatened Zones, respectively, prior to the effective date of P.L.1993, c.202 shall be considered to be areas of critical water supply concern for the purposes of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.).
c. In designated areas of critical water supply concern, the department, in consultation with affected permittees and local governing bodies and after notice and public hearing, shall:
(1) study water supply availability;
(2) estimate future water supply needs;
(3) identify appropriate and reasonable alternative water supply management strategies;
(4) select and adopt appropriate water supply alternatives; and
(5) require affected permittees to prepare water supply plans consistent with the adopted water supply management alternatives.
d. Following implementation of the adopted water supply management alternatives, the department shall monitor water levels and water quality within the designated area of critical water supply concern to determine the effectiveness of the alternative water supply management strategies selected. If the department determines that the alternatives selected are not effective in protecting the water supply source of concern, the department may revise the designation and impose further restrictions in accordance with the procedures set forth in this section. The results of all monitoring conducted pursuant to this section shall be reported to all affected permittees on an annual basis.
e. Nothing in P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.) shall prevent the department from including, or require the department to include, the presently non-utilized existing privileges in any new, modified or future diversion permit issued to the present holder of these privileges, except as otherwise expressly provided in subsection b. of section 7 of P.L.1981, c.262 (C.58:1A-7).
b. Every diversion permit issued or water usage certification approved pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6) shall be renewed by the department upon the expiration thereof, with any conditions deemed appropriate by the department, for the same quantity of water, except that the department may, after notice and public hearing, limit that quantity to the amount currently diverted, subject to contract, or reasonably required for a demonstrated future need. In designated areas of critical water supply concern, the department may, after notice and public hearing, modify the conditions of an existing diversion permit or water usage certification in order to (1) limit or reduce the quantity of water which lawfully may be diverted to the safe or dependable yield of the resource; (2) transfer the point of diversion; or (3) require a permittee to utilize alternate sources of water, upon a determination that the existing diversion or continued use of the same source in excess of the safe and dependable yield, as the case may be, adversely impacts or threatens to adversely impact the water resources of the State.
c. For any surface water or ground water source or area of the State that the department determines to be approaching conditions that may require the commissioner to designate that region as an area of critical water supply concern, and that meets the criteria established pursuant to subsection d. of this section, the department may, after notice and opportunity for public hearing, issue a temporary diversion permit which may be modified or terminated to any person seeking a new or modified permit to divert any waters of the State or to construct any building or structure or commence any activity which may require a diversion permit or water usage certification, as appropriate, pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6).
The duration of any temporary permit issued by the department pursuant to this subsection shall be for no longer than five years. The department may alter the conditions or amount of water allowed to be diverted, terminate the permit or renew the temporary permit for a subsequent term.
For the duration of the temporary permit issued by the department pursuant to this subsection, the permittee shall actively seek an alternative for the permittee's long-term water supply needs which, in the department's opinion, may be viable for the permittee to replace the previously allowable diversion amount.
Whenever the department terminates or modifies the conditions of a temporary permit, the department shall provide adequate advance notice to the permittee of the department's intentions and the rationale therefor. The department's rationale may include, but need not be limited to, an explanation of the status of watershed and water supply planning and infrastructure conditions and improvement initiatives for surface water or ground water sources or areas and alternatives which, in the department's opinion, may be viable for the permittee to replace the previously allowable diversion amount. These alternatives may include, but need not be limited to, reuse of treated wastewater effluent or other alternatives approved by the department.
Nothing herein shall alter the authority of the department to administer and enforce the provisions of P.L.1981, c.262 (C.58:1A-1 et seq.) or P.L.1993, c.202 (C.58:1A-7.3 et al.) or any rules, regulations and orders adopted, issued or effective thereunder pertaining to designated areas of critical water supply concern.
Any procedures or requirements necessary to implement the provisions of this subsection shall be contained in rules and regulations adopted by the department pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
d. The department may issue a temporary permit pursuant to subsection c. of this section only when the proposed diversion, construction or activity is intended to serve the long-term water supply needs of the permittee and water users of Salem or Gloucester counties.
The provisions of any law, rule or regulation to the contrary notwithstanding, no person shall transport, or cause to be transported, more than 10 miles outside the boundary of the Pinelands National Reserve, any ground or surface water therefrom; provided, however, that nothing in this section shall prohibit the continued transportation of any such water utilized for public water supply purposes prior to the effective date of this act.
As used in this section, "Pinelands National Reserve" means the approximately 1,000,000 acre area so designated by section 502 of the "National Parks and Recreation Act of 1978" (P.L. 95-625), and generally depicted on the map entitled "Pinelands National Reserve Boundary Map" numbered NPS/80,011A and dated September 1978.
As used in this section, "aquaculture" means the propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities such as stocking, intervention in the rearing process to increase production, feeding, transplanting, and providing for protection from predators and shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation, and "aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.
a. No existing diversion permit or water usage certification shall be reduced to an amount less than that withdrawn from the Depleted and Threatened Zone in 1991 or that specified through application of the formulas set forth as follows, whichever is less:
(1) Depleted Zone base allocations:
DZ = (0.65 x D83) + (Dmax - D83) where:
DZ = Depleted Zone base allocation issued to a person and expressed in million gallons per year (MGY);
D83 = A person's total Annual Potomac-Raritan-Magothy aquifer system (PRM) withdrawal from the Depleted Zone in MGY in 1983; and
Dmax = A person's total Annual PRM withdrawal from the Depleted Zone in any year between 1983 and 1991 in MGY.
The calculation of the Depleted Zone base allocation shall be based on the selection of one year for each affected permittee.
(2) Threatened Zone base allocations:
The Threatened Zone base allocation shall be equal to the maximum annual withdrawal from the Threatened Zone in any year between 1983 and 1991 in MGY.
In the case of those permittees with diversion permits for Depleted Zone and Threatened Zone withdrawals, the same year shall be used to calculate Depleted Zone allocations and Threatened Zone allocations.
The allocation for continued withdrawals for those industrial users whose withdrawals in 1991 were less than that withdrawn in any year between 1983 and 1990 due to economic conditions shall be calculated based upon the Depleted Zone and Threatened Zone formulas set forth in paragraphs (1) and (2) of this subsection and shall not be limited to the amount withdrawn in 1991.
In the calculation of revised PRM diversion permit withdrawal levels, the department shall consider the permittee's historic water use from the Depleted Zone and Threatened Zone.
The allocation represented by one-half of the difference between the total PRM allocation based upon the formula set forth in this subsection and the total 1991 withdrawal shall be designated as water allocation credits pursuant to section 5 of P.L.1993, c.202 (C.58:1A-7.4). These credits shall be available for transfer to areas designated for growth within the Water Allocation Credit Receiving Area as defined in subsection b. of this section.
b. Within the area designated and established by the department as Water Supply Critical Area II, those areas:
(1) north of the Rancocas Creek from its confluence with the Delaware River to the intersection of the southwest branch of the Rancocas Creek with State Route 38;
(2) north of State Route 38 to the start of County Route 530; and (3) north of County Route 530 to the intersection of County Route 530 and State Route 70 near the Burlington-Ocean county boundary, shall be recognized as a Water Allocation Credit Receiving Area. The department shall not unreasonably withhold approval for the transfer of water allocation credits for local use only within this area unless it can be demonstrated that the withdrawals will result in a significant adverse impact on the aquifer system. The department shall not unreasonably withhold approval of a permit modification seeking an increase in allocation where the permittee has obtained water allocation credits in an amount equal to the requested increase in withdrawal.
The areas described in paragraphs (1), (2) and (3) of this subsection shall be recognized as a Water Allocation Credit Receiving Area because hydrogeologic studies have shown that increased withdrawals from the PRM may be possible in this portion of the acquifer system without adverse impacts. Permittees within this area may receive water allocation credits and water conservation credits.
Water conservation credits shall be granted to any permittee in the Water Allocation Credit Receiving Area who can demonstrate a net reduction in annual water use over the 13-year period from 1978 through 1991, inclusive. The water conservation credits shall be equal to 50% of the difference between the maximum year withdrawal during this period and 1991, where the reduction can be documented as attributable to water conservation. The department shall approve the diversion permit modification to reflect the water conservation credits granted.
Permittees that have established water supply system interconnections in order to develop alternate supplies pursuant to an administrative order issued by the department prior to the effective date of P.L.1993, c.202 (C.58:1A-7.3 et al.) shall have the continuing right to transfer water through the interconnection if the diversion permitted under subsection a. of this section provides for the withdrawal that exceeds the needs of the users of the suppliers' system exclusive of the interconnection.
The supplier of an interconnected system shall have the right to obtain water allocation credits in an amount that would allow transfer of additional volumes through the interconnection provided that such additional volume does not exceed 50% of the volume transferred through the interconnection in 1991.
c. As used in this section, the boundary of the designated Water Supply Critical Area II corresponds to the average potentiometric contour 30 feet below sea level for the Potomac-Raritan-Magothy Aquifer as published in Water Levels in Major Artesian Aquifers of the New Jersey Coastal Plain, Water Resources Investigations Report 86-4028 of the United States Department of the Interior Geological Survey, 1983, and the surrounding margin area.
b. Within 60 days of the effective date of P.L.1993, c.202, the department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to implement the provisions of this section. These rules and regulations shall include:
(1) A procedure for the review and approval or disapproval of the transfer of water allocation credits; and
(2) A provision that a well for which all privileges to divert have been transferred shall be closed and capped to prevent the pumping of water from that well in the future.
c. The department shall provide for the expeditious review and approval of a plan submitted by a county which facilitates the transfer of water allocation credits. This review and approval may occur prior to the adoption of the rules and regulations required pursuant to this section.
(1) Any two or more adjacent or proximate counties located within any portion of a designated area of critical water supply concern may establish a Regional Water Allocation Credit Exchange to facilitate the transfer of water allocation credits within the area of critical water supply concern on a cooperative basis.
(2) Any Water Allocation Credit Exchange established in a county, by resolution of its governing body, prior to the effective date of P.L.1993, c.202 (C.58:1A-7.3 et al.) shall be vested with the authority provided herein.
(3) Any Regional Water Allocation Credit Exchange established in two or more adjacent or proximate counties, by resolution of their respective governing bodies, prior to the effective date of P.L.1993, c.202 (C.58:1A-7.3 et al.) shall be vested with the authority provided herein.
b. The owner of a sending well in a designated area of critical water supply concern may transfer a water allocation credit to the owner of a receiving well requiring the additional gallonage to meet the demand for water within its service area. This transfer may occur through a direct "arms length" transaction between the well owners, or between a well owner and a local government unit, or through the auspices of a county Water Allocation Credit Exchange established for this purpose pursuant to the provisions of this section.
The transfer shall be subject to confirmation by the department. The department shall issue a determination within 30 days of receipt of a request for confirmation and shall not unreasonably withhold confirmation of the transfer unless it can be demonstrated that the transfer will result in a significant adverse impact on the designated area of critical water supply concern. Upon confirmation of the transfer, the department shall modify the water allocation permits issued for diversions from the sending and receiving wells to reflect the water allocation credits being transferred, in accordance with the provisions of section 6 of P.L.1981, c.262 (C.58:1A-6).
c. The owner of a receiving well may increase the amount of gallons of water per year pumped from that well at a level equaling the amount of the water allocation credit.
a. Fixing the term of the permit;
b. Fixing the maximum allowable diversion, expressed in terms of a daily, monthly or annual diversion;
c. Identifying and limiting the use or uses to which the water may be put;
d. Requiring the diverter to meter the water being diverted and report the amount and quality of the water being diverted;
e. Allowing the department to enter the diverter's facilities or property to inspect and monitor the diversion;
f. Requiring that all water diverted for a nonconsumptive use be returned to a reasonably proximate body of water designated by the department;
g. Allowing the transfer of a permit with the consent of the department, but only for the identical use of the waters by the transferee;
h. Governing the operations and maintenance of the specific facilities, equipment or premises not otherwise established in regulations because of the unique nature of the facilities, equipment or premises;
i. Permitting the department to modify, suspend or terminate the permit, after notice and public hearing, for violations of its conditions, P.L.1981, c.262 (C.58:1A-1 et al.), P.L.1993, c.202 (C.58:1A-7.3 et al.), regulations adopted or orders issued by the department, and when deemed necessary for the public interest;
j. Permitting the department to modify the conditions of a diversion permit issued or water usage certification approved pursuant to section 6 of P.L.1981, c.262 (C.58:1A-6) in a designated area of critical water supply concern in order to (1) limit or reduce the quantity of water which lawfully may be diverted to the safe or dependable yield of the resource; (2) transfer the point of diversion; or (3) require a permittee to utilize alternate sources of water, upon a determination that the existing diversion or continued use of the same source in excess of the safe or dependable yield, as the case may be, adversely impacts or threatens to adversely impact the water resources of the State;
k. Allowing the transfer of water allocation to a different point of diversion within a designated area of critical water supply concern with the approval of the department.
Any person who is required to apply for and obtain a water use registration pursuant to rules and regulations adopted by the department to administer and enforce the provisions of P.L.1981, c.262 (C.58:1A-1 et seq.), P.L.1993, c.202 (C.58:1A-7.3 et al.) or P.L.2004, c.120 (C.13:20-1 et al.) shall, in conjunction with a completed registration form, submit an initial registration fee.
Each person who holds a valid water use registration shall pay an annual renewal fee.
An annual renewal fee shall not be charged for a volunteer fire company created pursuant to N.J.S.40A:14-70.1.
b. The department shall deposit the fees in the "Environmental Services Fund" created by P.L.1975, c.232 (C.13:1D-30 et seq.). There shall be annually appropriated an amount equivalent to the amount anticipated to be collected as fees by the department for the administration of the water supply management program.
No person supplying or proposing to supply water to any other person shall have the power to condemn lands, water or water privileges for any new or additional source of ground or surface water until that person has first submitted to the department an application for approval to divert the source of the water and the department has approved the application subject to such conditions as it may determine to be necessary to protect the public health and welfare.
b. The plan shall include, but need not be limited to, the following:
(1) An identification of existing Statewide and regional ground and surface water supply sources, both interstate and intrastate, and the current usage thereof;
(2) Projections of Statewide and regional water supply demands for the duration of the plan;
(3) Recommendations for improvements to existing State water supply facilities, the construction of additional State water supply facilities, and for the interconnection or consolidation of existing water supply systems, both interstate and intrastate;
(4) Recommendations for the diversion or use of fresh surface or ground waters and saline surface or ground waters for aquaculture purposes;
(5) Recommendations for legislative and administrative actions to provide for the maintenance and protection of watershed areas;
(6) Identification of lands purchased by the State for water supply facilities that currently are not actively used for water supply purposes, including, but not limited to, the Six Mile Run Reservoir Site, with recommendations as to the future use of these lands for water supply purposes within or outside of the planning horizon for the plan; and
(7) Recommendations for administrative actions to ensure the protection of ground and surface water quality and water supply sources.
c. Prior to adopting the plan, including any revisions and updates thereto, the department shall:
(1) Prepare and make available to all interested persons a copy of the proposed plan or proposed revisions and updates to the current plan;
(2) Conduct public meetings in the several geographic areas of the State on the proposed plan or proposed revisions and updates to the current plan; and
(3) Consider the comments made at these meetings, make any revisions to the proposed plan or proposed revisions and updates to the current plan as it deems necessary, and adopt the plan.
d. Prior to the adoption of any revision to the New Jersey Statewide Water Supply Plan pursuant to this section, the department shall consult with the Highlands Water Protection and Planning Council, established pursuant to section 4 of P.L.2004, c.120 (C.13:20-4), concerning the possible effects and impact of the plan upon the Highlands regional master plan, adopted pursuant to section 8 of P.L.2004, c.120 (C.13:20-8), and the water and other natural resources of the Highlands Region, as defined in section 3 of P.L.2004, c.120 (C.13:20-3).
b. Until State-owned lands identified pursuant to paragraph (6) of subsection b. of section 13 of P.L.1981, c.262 (C.58:1A-13) are used for water supply purposes, these lands shall be dedicated to the protection of natural resources, including grasslands, wetlands, forests and reforestation, ecosystem improvement, natural ground water recharge, and agricultural purposes that are compatible with natural resource protection and water quality protection. The use of these lands shall be subject to the following conditions:
(1) The lands may be used for open space recreational purposes to the extent that these uses do not impair natural or historic resource protection;
(2) Except for the construction of walking paths or bicycle paths, or other structures for passive recreational uses in accordance with the purposes of this act, permanent structures and other impervious cover shall be less than two percent of the total land area. Permanent structures or extensive impervious cover shall not be constructed on those lands that would be used for water supply purposes;
(3) The use of these lands for non-water supply purposes shall not impair the planned water supply use in any material way. Active recreation shall be allowed only outside the perimeter of any proposed water supply facilities, including, but not limited to, reservoirs, pipelines, canals, pumping stations or dams;
(4) Passive recreation may be allowed within the perimeter of any proposed water supply facility; and
(5) Agricultural uses shall be allowed in the most suitable sites based on soils, water quality protection and site configuration and shall be sited in a manner that protects the agricultural uses from significant interference and damage from recreational uses. All agricultural activities shall be conducted in a manner that will protect natural resources and water quality, as determined by the department in conjunction with the Department of Agriculture.
b. In its preparation of proposed revisions and updates to the current plan, the department shall consult with the New Jersey Water Supply Authority established pursuant to section 4 of P.L.1981, c.293 (C.58:1B-4) and the New Jersey Environmental Infrastructure Trust created pursuant to section 4 of P.L.1985, c.334 (C.58:11B-4), as appropriate, as well as with the public and private water purveyors.
a. When the department determines that the developed water supply available to a water purveyor is inadequate to service its users with an adequate supply of water under a variety of conditions, the department may order the water purveyor to develop or acquire, within a reasonable period of time, additional water supplies sufficient to provide that service.
b. The Division of Local Government Services in the Department of Community Affairs shall, when reviewing the annual budget of any municipality, county, or agency thereof which operates a public water supply system, certify that an amount sufficient to cover the cost of any order issued to the municipality, county or agency thereof pursuant to subsection a. of this section is included in that annual budget.
a. Perform any and all acts and issue such orders as are necessary to carry out the purposes and requirements of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.);
b. Administer and enforce the provisions of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.) and rules, regulations and orders adopted, issued or effective thereunder;
c. Present proper identification and then enter upon any land or water for the purpose of making any investigation, examination or survey contemplated by P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.);
d. Subpena and require the attendance of witnesses and the production by them of books and papers pertinent to the investigations and inquiries the department is authorized to make under P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.), and examine them and those public records as shall be required in relation thereto;
e. Order the interconnection of public water supply systems, whether in public or private ownership, whenever the department determines that the public interest requires that this interconnection be made, and require the furnishing of water by means of that system to another system, but no order shall be issued before comments have been solicited at a public hearing, notice of which has been published at least 30 days before the hearing, in one newspaper circulating generally in the area served by each involved public water supply system, called for the purpose of soliciting comments on the proposed action.
f. Order any person diverting water to improve or repair its water supply facilities so that water loss is eliminated so far as practicable, safe yield is maintained and the drinking water quality standards adopted pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et al.) are met;
g. Enter into agreements, contracts, or cooperative arrangements under such terms and conditions as the department deems appropriate with other states, other State agencies, federal agencies, municipalities, counties, educational institutions, investor-owned water companies, municipal utilities authorities, or other organizations or persons;
h. Receive financial and technical assistance from the federal government and other public or private agencies;
i. Participate in related programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;
j. Establish adequate fiscal controls and accounting procedures to assure proper disbursement of and accounting for funds appropriated or otherwise provided for the purpose of carrying out the provisions of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.);
k. Delegate those responsibilities and duties to personnel of the department as deemed appropriate for the purpose of administering the requirements of P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.);
l. Combine permits issued pursuant to P.L.1981, c.262 (C.58:1A-1 et al.) or P.L.1993, c.202 (C.58:1A-7.3 et al.) with permits issued pursuant to any other act whatsoever whenever that action would improve the administration of those acts;
m. Evaluate and determine the adequacy of ground and surface water supplies and develop methods to protect aquifer recharge areas.
(1) Issue an order in accordance with subsection b. of this section requiring the person to comply;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) Levy a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of P.L.1981, c.262, or the rule or regulation adopted, or order or permit issued pursuant thereto, of which the person is in violation; (2) citing the action that constituted the violation; (3) requiring compliance with the provision of P.L.1981, c.262, or the rule or regulation adopted, or order or permit issued pursuant thereto, of which the person is in violation; (4) requiring the restoration to address any adverse effects resulting from the violation; and (5) giving notice to the person of a right to a hearing on the matters contained in the order.
c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief from a violation of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto. This relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, sampling or monitoring survey that led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of P.L.1981, c.262 for which a civil action has been commenced and brought under this subsection;
(4) An order requiring the restoration of any adverse effects resulting from any unauthorized regulated activity for which a civil action is commenced under this subsection.
d. The commissioner is authorized to assess a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, assess civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may assess any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in P.L.1981, c.262, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. Any person who violates any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 for each day during which the violation continues. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto.
Any rules and regulations promulgated pursuant to any statutes repealed by this act shall remain in effect until superseded by rules and regulations promulgated pursuant to this act. However, all such rules and regulations shall be reviewed and revised where necessary by the department within 2 years of the enactment of this act.
The Legislature therefore determines that it is appropriate for the municipalities and counties within which the Rahway river is located to form an intergovernmental cooperative working group to (1) develop recommended regional planning strategies and other regional policies, procedures, and model ordinances and resolutions, which would be implemented by each member municipality and county on a voluntary basis, (2) where appropriate, coordinate efforts of member municipalities and counties to clean up the Rahway river system or any tributary or watershed land thereof and to alleviate flooding conditions in that river system, (3) recommend appropriate State legislation and administrative action, and (4) advocate, and where appropriate, act as a coordinating, distributing, or recipient agency for, federal and State funding of environmental protection projects in river municipalities and river counties, all for the purpose of achieving the State goal of fully restoring, promoting, preserving, and maintaining the environmental health and water quality of the Rahway river system.
"Commissioner" means the Commissioner of Environmental Protection.
"Committee" means the "Rahway River Intergovernmental Cooperation Committee" created pursuant to section 4 of this act.
"Department" means the Department of Environmental Protection.
"Environmental protection project" means any work the purpose of which is to reduce point or nonpoint source pollution discharges, stormwater runoff, illegal dumping of litter and other debris, and other environmental and aesthetic insults to the Rahway river system, or to otherwise maintain or enhance the environmental health and water quality of the Rahway river system or any tributary or watershed land thereof.
"River counties" means Union county , Middlesex county, and Essex county.
"River municipalities" means the Union county municipalities of Clark, Cranford, Garwood, Kenilworth, Linden, Mountainside, Rahway, Scotch Plains, Springfield, Summit, Union, Westfield, and Winfield, the Middlesex county municipalities of Carteret, Edison, and Woodbridge, the Essex county municipalities of Maplewood, Millburn, Orange, South Orange, and West Orange, and any other Union , Middlesex, or Essex county municipality that chooses to participate, and is accepted, as a member of the committee as provided in section 4 of this act.
Any municipality in Union county , Middlesex county, or Essex county that is not a river municipality may, through its governing body, request membership, with full voting privileges, on the committee. Such membership shall be granted upon a majority vote of the voting membership of the committee.
b. Vacancies in the positions on the committee shall be filled in the same manner as the original appointments were made.
c. Members of the committee shall serve without compensation, but may, within the limits of funds appropriated or otherwise made available to the committee, be reimbursed for actual expenses necessarily incurred in the discharge of their official duties.
d. A member of the committee may be removed at any time for any reason by the municipal or county governing body, or the county executive, as the case may be, that appointed that member.
b. A majority of the voting membership of the committee shall constitute a quorum for the transaction of committee business. Action may be taken and motions and resolutions adopted by the committee at any meeting thereof by the affirmative vote of a majority of the full voting membership of the committee.
c. The committee shall meet regularly as it may determine, and shall also meet at the call of the chairperson of the committee, the commissioner, or the Governor.
a. develop recommended regional planning strategies and other regional policies, procedures, and model ordinances and resolutions, which would be implemented by each member municipality and county on a voluntary basis;
b. where appropriate, coordinate efforts of member municipalities and counties to clean up the Rahway river system or any tributary or watershed land thereof and to alleviate flooding conditions in that river system;
c. recommend appropriate State legislation and administrative action; and
d. advocate, and where appropriate, act as a coordinating, distributing, or recipient agency for, federal and State funding of environmental protection projects in river municipalities and river counties, which projects may include the work of the committee.
b. The committee shall dissolve ten years after the date of enactment of this act unless the voting membership of the committee unanimously votes to continue its existence. Thereafter, such a vote shall be held annually, and failing the receipt of a unanimous vote of the voting membership to continue the existence of the committee for another year, the committee shall thereupon dissolve.
This act shall be known and may be cited as the "New Jersey Water Supply Authority Act."
The Legislature finds that a State authority should be established to acquire, finance, construct and operate water systems pursuant to the provisions of this act.
As used in this act:
a. "Authority" means the New Jersey Water Supply Authority created by this act;
b. "Bonds" means bonds, notes, or other obligations issued or authorized pursuant to this act;
c. "Compensating reservoir" means the structures, facilities and appurtenances for the impounding, transportation and release of water for the replenishment in periods of drought or at other necessary times of all or a part of waters in or bordering the State diverted into a project;
d. "Cost" as applied to a project means the cost of acquisition and construction thereof, the cost of acquisition of lands, rights-of-way, property rights, easements, and interests required by the authority for acquisition and construction, the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved, the cost of acquiring or constructing and equipping an office of the authority, the cost of machinery, furnishings, and equipment, financing expenses, reserves, interest prior to and during construction and for no more than 6 months after completion of construction, engineering, expenses of research and development with respect to any project, legal expenses, plans, specifications, surveys, estimates of cost and revenues, working capital, other expenses necessary or incident to determining the feasibility or practicability of acquiring or constructing a project, administrative expense, and such other expense as may be necessary or incident to the acquisition or construction of the project;
e. "Construct" and "construction" means and includes acts of construction, reconstruction, replacement, extension, improvement and betterment of a project;
f. "Department" means the Department of Environmental Protection;
g. "Governmental agency" means any municipality, county, or any agency thereof, the State Government and any instrumentality or subdivision thereof;
h. "Project" means a water system or any part thereof;
i. "Real property" means lands both within or without the State, and improvements thereof or thereon, or any rights or interests therein;
j. "Revenue" means all rents, fees and charges for water sold from, or for the use and services of any project of the authority and payments in respect of any loans or advances made to governmental agencies pursuant to this act;
k. "Service charges" means water service charges established or collected by the authority pursuant to this act;
l . "Water system" means the plants, structures and other real and personal property financed, acquired, constructed or operated or to be financed, acquired, constructed or operated by the authority under this act or additions and improvements thereto, including reservoirs, basins, dams, canals, aqueducts, standpipes, conduits, pipelines, mains, pumping stations, water transmission systems, compensating reservoirs, waterworks or sources of water supply, wells, purification or filtration plants or other plants, equipment and works, connections, rights of flowage or diversion, and other plants, structures, boats, conveyances, and other real and personal property and rights therein, and appurtenances necessary or useful and convenient for the accumulation, supply, treatment or transmission of water.
a. There is established in but not of the Department of Environmental Protection a public body corporate and politic, with corporate succession, to be known as the "New Jersey Water Supply Authority." The authority is hereby constituted as an instrumentality of the State exercising public and essential governmental functions.
b. The authority shall consist of the Commissioner of Environmental Protection, who shall be a member ex officio with full voting rights, and six public members appointed by the Governor with the advice and consent of the Senate for terms of 3 years; provided that of the members of the authority first appointed by the Governor, two shall serve for terms of 1 year, two shall serve for terms of 2 years, and two shall serve for terms of 3 years, of whom two shall be recognized experts in the fields of water resource management and distribution, and public finance, respectively. The remaining public members appointed by the Governor shall represent the following: the agricultural community, industrial water users, residential water users and private watershed associations. Each member shall hold office for the term of his appointment and until his successor shall have been appointed and qualified. A member shall be eligible for reappointment. Any vacancy in the membership occurring other than by expiration of term shall be filled in the same manner as the original appointment but for the unexpired term only.
c. Each appointed member may be removed from office by the Governor, for cause, after a public hearing, and may be suspended by the Governor pending the completion of the hearing. Each member before entering upon his duties shall take and subscribe an oath to perform the duties of his office faithfully, impartially and justly to the best of his ability. A record of these oaths shall be filed in the office of the Secretary of State.
d. The chairman, who shall be the chief executive officer of the authority, shall be the Commissioner of Environmental Protection, and the members of the authority shall elect one of their number as vice chairman thereof. The authority shall elect a secretary and a treasurer who need not be members, and the same person may be elected to serve both as secretary and treasurer. The powers of the authority shall be vested in the members thereof in office from time to time and four members of the authority shall constitute a quorum at any meeting thereof. Action may be taken and motions and resolutions adopted by the authority at any meeting thereof by the affirmative vote of at least four members of the authority. No vacancy in the membership of the authority shall impair the right of a quorum of the members to exercise all the powers and perform all the duties of the authority.
e. No resolution or other action of the authority providing for the issuance of bonds or the refunding of bonds shall be adopted or otherwise made effective by the authority without the prior approval, in writing, of the Governor and of the State Treasurer or the Comptroller of the Treasury. A true copy of the minutes of every meeting of the authority shall be prepared and forthwith delivered to the Governor. No action taken at such meeting by the authority shall have effect until 10 days, exclusive of Saturdays, Sundays and public holidays, after the copy of the minutes has been so delivered. If, in this 10-day period, the Governor returns the copy of the minutes with a veto of any action taken by the authority at that meeting, the action shall be of no effect.
f. Each member and the treasurer of the authority shall execute a bond to be conditioned upon the faithful performance of the duties of the member or treasurer, as the case may be, in a form and amount as may be prescribed by the Comptroller of the Treasury. The bonds shall be filed in the office of the Secretary of State. At all times thereafter the members and treasurer of the authority shall maintain these bonds in full force. The costs of the bonds shall be borne by the authority.
g. The members of the authority shall serve without compensation, but the authority shall reimburse its members for actual expenses necessarily incurred in the discharge of their duties. No officer or employee of the State shall be deemed to have forfeited or shall forfeit his office or employment or any benefits or emoluments thereof by reason of his acceptance of the office of ex officio member of the authority.
h. The Commissioner of Environmental Protection may designate an officer or employee of the department to represent him at meetings of the authority, and the designee may lawfully vote and otherwise act on behalf of the commissioner. The designation shall be in writing delivered to the authority and shall continue in effect until revoked or amended by writing delivered to the authority.
i. The authority may be dissolved by act of the Legislature on condition that the authority has no debts or obligations outstanding or that provision has been made for the payment or retirement of debts or obligations. Upon a dissolution of the authority all property, funds and assets thereof shall be vested in the State.
b. The revenue from all State water supply facilities, the disposition of which is not otherwise expressly provided for by law, is pledged to the authority for the purposes provided in the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.).
b. The authority shall be subject to compliance with all State health and environmental protection statutes and regulations and any other statutes and regulations not inconsistent herewith. The authority may, upon the request of a governmental agency, enter into a contract to provide services for any project.
c. The authority shall consult with the Water Supply Advisory Council from time to time prior to final action on any project or undertaking authorized pursuant to this section.
d. The authority shall consult with the Highlands Water Protection and Planning Council, established pursuant to section 4 of P.L.2004, c.120 (C.13:20-4), from time to time prior to final action on any project or undertaking authorized pursuant to this section in the Highlands Region, as defined in section 3 of P.L.2004, c.120 (C.13:20-3). The provisions of section 16 of P.L.2004, c.120 (C.13:20-16) shall apply to the authority.
a. To sue and be sued.
b. To have an official seal and alter the same at pleasure.
c. To make and alter bylaws for its organization and internal management and for the conduct of its affairs and business.
d. To maintain an office at such place or places within the State as it may determine.
e. To acquire, lease as lessee or lessor, rent, hold, use and dispose of real or personal property for its purposes.
f. To borrow money and to issue its negotiable bonds and to secure the same by a mortgage on its property or any part thereof and otherwise to provide for and secure the payment thereof and to provide for the rights of the holders thereof.
g. To fix and revise from time to time and charge and collect rents, fees and charges for any of the services rendered by the authority, which shall be equitably assessed.
h. To procure insurance against any losses in connection with its property, operations or assets in such amounts and from such insurers as it deems desirable.
i. Subject to any agreement with bondholders to invest moneys of the authority not required for immediate use, including proceeds from the sale of any bonds, in such obligations, securities and other investments as the authority shall deem prudent.
j. To appoint and employ an executive director and such additional officers who need not be members of the authority and accountants, financial advisors or experts and such other or different officers, agents and employees as it may require and determine their qualifications, terms of office, duties and compensation, all without regard to the provisions of Title 11A, Civil Service, of the New Jersey Statutes, except with respect to those officers and employees of the Water Supply Facilities Element who are transferred to the authority pursuant to section 24 of P.L.1981, c.293 (C.58:1B-24), and these officers and employees shall remain subject to the provisions of that Title.
k. To contract for and to accept any gifts or grants or loans of funds or property or financial or other aid in any form from the United States of America or any agency or instrumentality thereof, or from the State or any agency, instrumentality or political subdivision thereof, or from any other source and to comply, subject to the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.), with the terms and conditions thereof.
l. To acquire, hold, rent, lease, use and dispose of real or personal property in the exercise of its powers and the performance of its duties under P.L.1981, c.293 (C.58:1B-1 et seq.).
m. To acquire, subject to the provisions of any other statute, in the name of the authority by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, except with respect to property owned by the State, by the exercise of the power of eminent domain, any land and other property, which it may determine is reasonably necessary for any of its projects and any and all rights, title and interest in that land and other property, including, providing there is no prudent and feasible alternative, public lands, reservations, highways or parkways, owned by or in which the State or any county, municipality, public corporation, or other political subdivision of the State has any right, title or interest, or parts thereof or rights therein and any fee simple absolute or any lesser interest in private property, and any fee simple absolute in, easements upon or the benefit of restrictions upon, abutting property to preserve and protect the project.
n. To do and perform any acts and things authorized by P.L.1981, c.293 (C.58:1B-1 et seq.) under, through, or by means of its officers, agents or employees or by contract with any person.
o. To establish and enforce rules and regulations for the use and operation of its projects and the conduct of its activities, and provide for the policing and the security of its projects.
p. Upon the request of a customer: (1) to offer the customer the ability to receive or access, in electronic format, any periodic bill for service sent by the local unit or units to its customers and any additional information sent by the local unit or units to its customers as required by law, provided that any notice of disconnection, discontinuance or termination of sewerage service shall be sent to a customer in written form at the customer's legal mailing address in addition to being sent or being made available in electronic format; and (2) to provide the customer the option of paying any such periodic bill via electronic means.
q. To do any and all things necessary or convenient to carry out its purposes in accordance with the powers given and granted in P.L.1981, c.293 (C.58:1B-1 et seq.).
a. Upon the exercise of the power of eminent domain, the compensation to be paid thereunder shall be ascertained and paid in the manner provided in P.L.1971, c. 361 (C. 20:3-1 et seq.).
b. Whenever the authority shall determine that it is necessary that any public utility facilities such as tracks, pipes, mains, conduits, cables, wires, towers, poles and other equipment and appliances of any public utility, as defined in R.S. 48:2-13, which are now, or hereafter may be, located in, on, along, over or under any project, should be removed from such project, the public utility owning or operating such facilities shall relocate or remove the same in accordance with the order of the authority; provided, however, that the cost and expenses of such relocation or removal, including the cost of installing such facilities in a new location or new locations, and the cost of any lands, or any rights or interests in lands, and any other rights acquired to accomplish such relocation or removal, less the cost of any lands or any rights of the public utility paid to the public utility in connection with the relocation or removal of such property, shall be ascertained and paid by the authority as a part of the cost of such project. In case of any such relocation or removal of facilities, as aforesaid, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location, for as long a period, and upon the same terms and conditions, as it had the right to maintain and operate such facilities in their former location.
b. Except as may be otherwise expressly provided in the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) or by the authority, every issue of bonds shall be general obligations payable out of and secured by any revenues or funds of the authority, subject only to any agreements with holders of particular bonds pledging any particular revenues or funds. The authority may issue the types of bonds as it may determine, including, without limiting the generality of the foregoing, bonds as to which the principal and interest are payable (1) exclusively from the revenues and funds derived from or relating to the project or part thereof financed with the proceeds of the bonds; (2) exclusively from the revenues and funds derived from or relating to certain designated projects or parts thereof, whether or not the same are financed in whole or in part from the proceeds of bonds; (3) exclusively from certain designated funds of the authority; or (4) from the revenues and funds of the authority generally. The bonds may be additionally secured by a pledge of any grant, subsidy or contribution from the United States of America or any agency or instrumentality thereof or the State of New Jersey or any agency, instrumentality or political subdivision thereof, or any person, or a pledge of any income or revenues, funds or moneys of the authority from any source whatsoever.
c. Whether or not the bonds are of such form and character as to be negotiable instruments under the terms of Title 12A of the New Jersey Statutes, the bonds are hereby made negotiable instruments within the meaning of and for all the purposes of Title 12A of the New Jersey Statutes, subject only to the provisions of the bonds for registration.
d. Bonds of the authority shall be authorized by a resolution or resolutions of the authority and may be issued in one or more series and shall bear the date or dates, mature at the time or times, bear interest at the rate or rates of interest per annum, be in the denomination or denominations, be in the form, either coupon or registered, carry the conversion or registration privileges, have the rank or priority, be executed in the manner, be payable from the sources, in the medium of payment at the place or places within or without the State, and be subject to the terms of redemption, with or without premium, as the resolution or resolutions may provide.
e. Bonds of the authority may be sold at public or private sale at the price or prices and in the manner as the authority shall determine. Every bond shall mature and be paid not later than 40 years from the date thereof.
f. Bonds may be issued under the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) without obtaining the consent of any department, division, commission, board, bureau or agency of the State, and without any other proceeding or the happening of any other conditions or other things than those proceedings, conditions or things which are specifically required by the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.).
g. Bonds of the authority issued under the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) shall not be in any way a debt or liability of the State or of any political subdivision thereof other than the authority and shall not create or constitute any indebtedness, liability or obligation of the State or of the political subdivision or be or constitute a pledge of the faith and credit of the State or of the political subdivision but all the bonds, unless funded or refunded by bonds of the authority, shall be payable solely from revenues or funds pledged or available for their payment as authorized pursuant to the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.). Each bond shall contain on its face a statement to the effect that the authority is obligated to pay the principal thereof or the interest thereon only from revenues or funds of the authority and that neither the State nor any political subdivision thereof is obligated to pay the principal or interest and that neither the faith and credit nor the taxing power of the State or any political subdivision thereof is pledged to the payment of the principal of or the interest on the bonds.
h. Except as may be otherwise expressly provided in the provisions of subsection i. of this section, all expenses incurred in carrying out the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) shall be payable solely from revenues or funds provided or to be provided under the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) and nothing in the provisions of P.L.1981, c.293 (C.58:1B-1 et seq.) shall be construed to authorize the authority to incur any indebtedness or liability on behalf of or payable by the State or any political subdivision thereof.
i. The authority may receive moneys from the New Jersey Water Supply Authority Round Valley Fund created pursuant to section 7 of P.L.2001, c.82 (C.58:1B-9.2) to defray the additional, reasonable energy or water expenses incurred in replenishing the water released from the Round Valley reservoir for the purpose of sustaining water recreational activities at the Spruce Run reservoir as provided in subsection a. of section 8 of P.L.1958, c.34 (C.58:22-8).
b. The Commissioner of Environmental Protection shall certify to the Legislature the actual energy or water expenses incurred by the authority in replenishing the water released from the Round Valley reservoir for the purpose of sustaining water recreational activities at the Spruce Run reservoir. The commissioner may require the authority to provide additional information verifying that the additional energy or water expenses incurred by the authority are reasonable and based upon the lowest possible electric utility rates available.
(1) The fund shall be fully funded at a first year level of $350,000, and shall be fully funded annually thereafter at a level of not less than $225,000 but not more than $350,000 on July 1 of each fiscal year.
(2) The Legislature shall annually appropriate from the General Fund to the fund such sums as may be necessary to maintain the levels prescribed in this subsection, except that no annual appropriation shall be less than $40,000.
b. The sum of $350,000 shall be deposited in the fund from the moneys made available pursuant to section 9 of P.L.2001, c.82, and from all interest received from the investment of moneys in the fund, and from any moneys which, from time to time, may otherwise become available for the purposes of the fund.
c. Pending the use thereof as provided in subsection a. of this section, the moneys in the fund shall be held in interest-bearing accounts in public depositories as defined in section 1 of P.L.1970, c.236 (C.17:9-41), and may be invested and reinvested in such securities as are approved by the State Treasurer, in the manner provided by law.
In any resolution of the authority empowering or relating to the issuance of any bonds the authority, in order to secure the payment of such bonds and in addition to its other powers, shall have power, by provisions therein which shall constitute covenants by the authority and contracts with the holders of the bonds:
a. To pledge all or any part of its rents, fees, tolls, revenues or receipts to which its right then exists or may thereafter come into existence, and the moneys derived therefrom, and the proceeds of any bonds.
b. To pledge any lease or other agreement or the rents or other revenues thereunder and the proceeds thereof.
c. To mortgage all or any part of its property, real or personal, then owned or thereafter to be acquired.
d. To covenant against pledging all or any part of its rents, fees, tolls, revenues or receipts or its leases or agreements or rents or other revenues thereunder or the proceeds thereof, or against mortgaging all or any part of its real or personal property then owned or thereafter acquired, or against permitting or suffering any lien on any of the foregoing.
e. To covenant with respect to limitations on any right to sell, lease or otherwise dispose of any project or any part thereof or any property of any kind.
f. To covenant as to any bonds to be issued and the limitations thereon and the terms and conditions thereof and as to the custody, application, investment, and disposition of the proceeds thereof.
g. To covenant as to the issuance of additional bonds or as to limitations on the issuance of additional bonds and on the incurring of other debts by it.
h. To covenant as to the payment of the principal of or interest on the bonds, or any other obligations, as to the sources and methods of payment, as to the rank or priority of the bonds with respect to any lien or security or as to the acceleration of the maturity of the bonds.
i. To provide for the replacement of lost, stolen, destroyed or mutilated bonds.
j. To covenant against extending the time for the payment of bonds or interest thereon.
k. To covenant as to the redemption of bonds and privileges of exchange thereof for other bonds of the authority.
l . To covenant as to the rates of toll and other charges to be established and charged, the amount to be raised each year or other period of time by tolls or other revenues and as to the use and disposition to be made thereof.
m. To covenant to create or authorize the creation of special funds or moneys to be held in pledge or otherwise for construction, operating expenses, payment or redemption of bonds, reserves or other purposes and as to the use, investment, and disposition of the moneys held in those funds.
n. To establish the procedure, if any, by which the terms of any contract or covenant with or for the benefit of the holders of bonds may be amended or abrogated, the amount of bonds the holders of which must consent thereto, and the manner in which the consent may be given.
o . To covenant as to the construction, improvement, or maintenance of its real and personal property, the replacement thereof, the insurance to be carried thereon, and the use and disposition of insurance moneys.
p. To provide for the release of property, leases or other agreements, or revenues and receipts from any pledge or mortgage and to reserve rights and powers in, or the right to dispose of, property which is subject to a pledge or mortgage.
q. To provide for the rights and liabilities, powers and duties arising upon the breach of any covenant, condition or obligation and to prescribe the events of default and the terms and conditions upon which any or all of the bonds of the authority shall become or may be declared due and payable before maturity and the terms and conditions upon which any such declaration and its consequences may be waived.
r. To vest in a trustee or trustees within or without the State such property, rights, powers and duties in trust as the authority may determine, including the right to foreclose any mortgage, and to limit the rights, duties and powers of the trustee.
s. To execute all mortgages, bills of sale, conveyances, deeds of trust and other instruments necessary or convenient in the exercise of its powers or in the performance of its covenants or duties.
t. To pay the costs or expenses incident to the enforcement of such bonds or of the provisions of the resolution or of any covenant or agreement of the authority with the holders of its bonds; and
u. To limit the rights of the holders of any bonds to enforce any pledge or covenant securing bonds.
Any pledge of revenues, moneys, funds or other property made by the authority shall be valid and binding from the time when the pledge is made. The revenues, moneys, funds or other property so pledged and thereafter received by the authority unless otherwise agreed, shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of the pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority, irrespective of whether the parties have notice thereof. Neither the resolution nor any other instrument by which a pledge of revenues, moneys or funds is created need be filed or recorded except in the records of the authority.
Neither the members of the authority nor any person executing bonds issued pursuant to this act shall be liable personally on the bonds by reason of the issuance thereof.
The authority may establish such reserves, funds or accounts as may be, in its discretion, necessary or desirable to further the accomplishment of the purposes of the authority or to comply with the provisions of any agreement made by or any resolution of the authority.
The State of New Jersey pledges to and covenants and agrees with the holders of any bonds issued pursuant to authority of the act that the State will not limit or alter the rights or powers vested in the authority to acquire, construct, maintain, improve, and repair any project in any way that would jeopardize the interest of such holders, or to perform and fulfill the terms of any agreement made with the holders of the bonds, or to fix, establish, charge and collect such rents, fees, rates or other charges as may be convenient or necessary to produce sufficient revenues to meet all expenses of the authority and fulfill the terms of any agreement made with the holders of the bonds, together with interest thereon, with interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceedings by or on behalf of such holders, until the bonds, together with interest thereon, are fully met and discharged or provided for.
The State and all public officers, governmental units and agencies thereof, all banks, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, and all executors, administrators, guardians, trustees and other fiduciaries, may legally invest any sinking funds, moneys or other funds belonging to them or within their control in any bonds issued pursuant to the act, and such bonds shall be authorized security for any and all public deposits.
Any governmental entity, notwithstanding any contrary provision of law, except any requiring notice or public hearing, is authorized to lease, lend, grant or convey to the authority at its request upon such terms and conditions as the governing body or other proper utility of such governmental entity may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the ordinance, resolution or regular action thereof, any real property or interest therein which may be necessary or convenient to the effectuation of the purposes of the authority. No property of the State, other than meadowlands, riparian lands or lands under water and similar lands or interests therein referred to and whose disposition is controlled by the provisions in Title 12, Commerce and Navigation, and Title 13, Conservation and Development, of the Revised Statutes, shall be so granted, leased or conveyed to the authority, except upon the approval of the State House Commission and payment to the State of such price therefor as may be fixed by the State House Commission.
Every project, when constructed and placed in operation, shall be properly maintained and kept in good condition and repaired by the authority. Every project shall be operated by such operating employees as the authority may in its discretion employ or pursuant to a contract or lease with a governmental agency or person.
Nothing in this act shall be construed to authorize or permit the authority to plan, initiate, acquire, construct, maintain, repair or operate any retail water system or project.
The authority may establish and alter rates and charges, and collect rents, fees and charges for water sold from, and for the use of services of any water system project and contract in the manner provided in this section with one or more persons, one or more governmental entities, or any combination thereof, receiving the use or services of any project, and fix the terms, conditions, rents, rates, fees and charges for such use or services.
The contract may provide for acquisition by such person or governmental agency of all or any part of the project for such consideration payable over the period of the contract or otherwise as the authority in its discretion determines to be appropriate, but subject to the provisions of any resolution of the authority authorizing the issuance of bonds or any trust agreement securing the same. Any water supply entity which has the power to construct, operate and maintain water management facilities may enter into a contract or lease with the authority whereby the use or services of any project of the authority will be made available to the entity and pay for the use or services such rents, rates, fees and charges as may be agreed to by the authority and the entity.
Any one or more public or private entity may cooperate with the authority in the acquisition or construction of a project and shall enter into such agreements with the authority as are necessary, with a view to effective cooperative action and safeguarding of the respective interests of the parties thereto, which agreements shall provide for such contributions by the parties thereto in such proportion as may be agreed upon and such other terms as may be mutually satisfactory to the parties including without limitation the authorization of the construction of the project by one of the parties acting as agent for all of the parties and the ownership and control of the project by the authority to the extent necessary or appropriate for purposes of the issuance of bonds by the authority. Any governmental agency may provide such contribution as is required under such agreements by the appropriation of money or, if otherwise authorized by law to issue bonds or levy taxes or assessments and issue bonds in anticipation of the collection thereof, by the issuance of bonds or by the levying of taxes or assessments and the issuance of bonds in anticipation of the collection thereof, and by the payment of such appropriated money or the proceeds of the bonds to the authority pursuant to such agreements.
On or before the last day of February in each year the authority shall make an annual report of its activities for the preceding calendar year to the Governor and to the Legislature. The report shall set forth a complete operating and financial statement covering its operations during the year. The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof shall be considered an expense of the authority and a copy thereof shall be filed with the Comptroller of the Treasury.
All officers, departments, boards, agencies, divisions and commissions of the State are authorized to render such services to the authority as may be within the area of their respective governmental functions as fixed by law, and as may be requested by the authority. The cost and expense of the services shall be met and provided for by the authority. The Attorney General shall serve as counsel to the authority.
b. Commencing in the fifth year after the year in which P.L.1999, c.440 takes effect, and every five years thereafter, the Governor, in consultation with the Department of the Treasury, shall adjust the threshold amount set forth in subsection a. of this section, or after the effective date of P.L.1999, c.440, the threshold amount resulting from any adjustment under this subsection in direct proportion to the rise or fall of the index rate as that term is defined in section 2 of P.L.1971, c.198 (C.40A:11-2), and shall round the adjustment to the nearest $1,000. The Governor shall, no later than June 1 of every fifth year, notify the authority of the adjustment. The adjustment shall become effective on July 1 of the year in which it is made.
a. All projects and other property of the authority is declared to be public property devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any political subdivision thereof; provided, however, that when any part of the project site not occupied or to be occupied by facilities of the project is leased by the authority to another whose property is not exempt and the leasing of which does not make the real estate taxable, the estate created by the lease and the appurtenances thereto shall be listed as the property of the lessee thereof and be assessed and taxed as real estate. All bonds issued pursuant to this act are declared to be issued by a body corporate and politic of the State and for an essential public and governmental purpose and these bonds, and the interest thereon and the income therefrom, and all funds, revenues, income and other moneys received or to be received by the authority and pledged or available to pay or secure the payment of the bonds, or interest thereon, shall be exempt from taxation except for transfer inheritance and estate taxes.
b. Any project constructed, maintained or operated by the authority shall be exempt from compliance with local zoning regulations, but the authority shall wherever practicable adhere to the regulations.
The Water Supply Facilities Element in the Division of Water Resources of the Department of Environmental Protection, together with all its functions, powers and duties, is hereby transferred to the authority established pursuant to this act. This act shall not affect the terms of office of, nor the salaries received by, the present officers or employees of the element.
The transfer of responsibilities directed by this act shall be made in accordance with the "State Agency Transfer Act," P.L.1971, c. 375 (C. 52:14D-1 et seq.).
Every municipality, corporation or private person diverting the waters of streams or lakes with outlets for the purpose of a public water supply shall make annual payments on May first to the state treasurer for all such water diverted in excess of a total amount equal to one hundred gallons daily for each inhabitant of the municipality or municipalities supplied, as shown by the census of one thousand nine hundred and five, or in excess of such greater amount as it may have been legally diverting on June seventeenth, one thousand nine hundred and seven.
The provisions contained in this chapter as to payment to the state for water diverted from surface sources shall not apply to waters obtained from wells, except as provided in section 58:2-4 of this title.
Payment for water diverted as provided in R.S. 58:2-1 shall be deemed to be a license and its amount shall be fixed by the department at a rate of not less than $1.00 nor more than $10.00 per million gallons. If at all times an amount equal to the average daily flow for the driest month, as shown by the existing records, or in lieu thereof 125,000 gallons daily for each square mile of unappropriated watershed above the point of diversion, shall be allowed to flow down the stream. The department shall fix the minimum rate and may increase the rate proportionally as a lesser amount is allowed to flow down the stream below the point of diversion, due account being taken in fixing said increase both of the duration and amount of the deficiency. The aforesaid 125,000 gallons daily for each square mile of unappropriated watershed shall be additional to the dry-season flow or any part thereof which may be allowed to flow from any appropriated watershed or watersheds above the point of diversion.
Water diverted within the corporate limits of a municipality for manufacturing and fire purposes only and returned without pollution to the stream from which it was taken within said corporate limits shall not be reckoned in making up the aggregate amount diverted.
Any party aggrieved by the action of the department upon filing written complaint on or before March twentieth, shall be heard and permitted to give evidence of the facts, and the sum fixed may be changed, reduced, or cancelled, as the facts may warrant.
The department shall annually certify to the State Comptroller, as soon as practicable after January first, and not later than February fifteenth, the names of all municipalities, corporations or private persons owing money to the State for the diversion of water during the preceding year, with the amounts so due.
The State Comptroller shall promptly notify said municipalities, water companies or persons of their indebtedness to the State, and if said amounts are not paid to the State Treasurer on or before July first of the same year, the State Comptroller shall certify to the Attorney-General for collection the names of the delinquents and the amounts due from each, and the Attorney-General shall take immediate steps to collect the same in the name of the State.
All sums received as herein provided shall be deposited to the credit of the State and deemed as part of the Environmental Services Fund. The Legislature shall annually appropriate an amount equivalent to the amount anticipated to be collected as sums charged under this section in support of the water management programs.
In the case of the condemnation of subsurface, well or percolating water supplies, there shall be charged by the State a fee of $1.00 per million gallons from that portion of the supply for the acquisition of which the State's right of eminent domain is exercised for all water diverted, which charge shall be certified to the State Comptroller by the department and its collection shall be enforced in the same manner as hereinbefore in this chapter provided in the case of excess diversion of surface water supplies.
Nothing in this chapter shall be construed to confer upon any municipality, corporation or person, any franchise not already possessed by said municipality, corporation or person, but the approval of the department contained in its decision as provided in this chapter, shall constitute the assent of the State to the diversion of water as against the State in accordance with the terms of said decision.
a. No municipality, corporation or person shall, without the consent of the Commissioner of Environmental Protection, hereafter in this chapter designated as the commissioner, build any reservoir or construct any dam, or repair, alter or improve existing dams on any river or stream in this State or between this State and any other state which will raise the waters of the river or stream more than five feet above its usual mean low-water height.
No municipality, corporation or person shall, without the consent of the commissioner, build any reservoir or construct any dam, or repair, alter or improve existing dams in the pinelands area, as designated by subsection a. of section 10 of P.L.1979, c.111 (C.13:18A-11), which will raise the waters of any river or stream more than eight feet above the surface of the ground where the drainage area above the dam or reservoir is more than one square mile in extent and where the water surface created by the dam or reservoir is more than 100 acres in extent.
The commissioner may investigate and take appropriate action regarding any dam or reservoir about which the commissioner has a security or safety concern.
With respect to dams and reservoirs located on lands utilized for agricultural or horticultural purposes within the pinelands area, the commissioner's actions shall be undertaken after consultation with the Secretary of Agriculture.
b. The commissioner shall not require a permit for the repair of any dam used for agricultural purposes within a special agricultural production area designated pursuant to N.J.A.C.7:50-5.14 in the pinelands area.
Every municipality, corporation or person, before constructing any reservoir or dam subject to the provisions of this chapter shall apply to the commissioner for the approval of the plans of such reservoir or dam, which approval the commissioner may grant with such modifications, limitations or changes as in his judgment may be necessary for the protection of life and property.
Every municipality, corporation or person owning and maintaining or having control of any reservoir or dam shall, upon written request therefor, furnish to the commissioner as full, true and particular description of the reservoir or dam as may be practicable, and shall, when so requested by the commissioner cause to be made such surveys, plans and drawings of the reservoir or dam as may be necessary to give sufficient information for the determination of its safety as may be required by the commissioner.
Upon written application by any person owning or representing property liable to be injured or destroyed by the breaking of any reservoir or dam, or upon application by the mayor or governing body of any municipality on account of possible danger of loss of life or of injury to any property within the municipality from the breaking of any reservoir or dam, or without such complaint whenever the commissioner shall choose, he shall forthwith thoroughly inspect such reservoir or dam.
a. An owner or person having control of a reservoir or dam shall:
(1) Implement all measures required pursuant to this chapter or the provisions of P.L.1981, c.249 (C.58:4-8.1 et seq.), or any rule, regulation, code, permit or order issued pursuant thereto, including but not limited to, performance of periodic inspections required pursuant to section 2 of P.L.1981, c.249 (C.58:4-8.2) or development, updating and implementation of emergency action plans;
(2) Provide to the Department of Environmental Protection, upon request, any reports or information required pursuant to this chapter or the provisions of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto; and
(3) Implement any action ordered by the Commissioner of Environmental Protection to correct conditions that render the reservoir or dam to be considered, as determined by the commissioner, unsafe or improperly maintained or to bring the reservoir or dam into compliance with standards established pursuant to this chapter, or any rule or regulation adopted, or permit or order issued pursuant thereto.
b. If, in the judgment of the commissioner, any reservoir or dam is not sufficiently strong to resist the pressure of water that is or may be upon it or there is reasonable cause to believe that danger to life or property may be anticipated from the reservoir or dam, or if for any other cause the commissioner shall determine the reservoir or dam to be unsafe or improperly maintained, the commissioner shall take any action authorized pursuant to this section to compel compliance with the provisions of this chapter, or any rule or regulation adopted, or permit or order issued pursuant thereto, and shall determine whether the water in the reservoir or above the dam shall be drawn off in whole or in part, and what alterations, additions and repairs are necessary to be made to the reservoir or dam to make it safe and properly maintained or whether the dam or appurtenant structures located therein should be removed. The commissioner also may take action as authorized pursuant to R.S.58:4-6 against the owner or person having control of the reservoir or dam for such relief as the commissioner may determine. The commissioner shall forthwith in writing order the owner or person having control of the reservoir or dam to cause the alterations, additions and repairs to be made within the time to be limited in the order. A copy of any order issued by the commissioner pursuant to this section shall be sent to the clerk of the municipality and the clerk of the county in which the reservoir or dam is located. The commissioner also may order the water in the reservoir or above the dam to be drawn off in whole or in part as the commissioner may determine. The commissioner shall not approve the decommissioning of a reservoir or dam until the commissioner has provided 30 days' prior notice and the commissioner has complied with the provisions of R.S.58:4-10 as applicable. The notice of the proposed decommissioning shall be published at least 30 days prior to the decommissioning of the reservoir or dam in at least one newspaper of general circulation in the municipality in which the reservoir or dam is located. The commissioner shall have the right to enter upon any and all properties for the purpose of obtaining information about the safety and proper maintenance of any reservoir, dam or appurtenant structures located therein.
c. Any owner or person having control of a reservoir or dam who fails to comply with an order issued pursuant to this section or R.S.58:4-6 may be liable to the department in an amount equal to the cost of removal of the dam or appurtenant structures located therein undertaken by the department, including attorney's fees and court costs, pursuant to subsection d. of this section.
Whenever two or more owners or persons having control of a reservoir or dam are liable for the cost of removal, including attorney's fees and court costs, the department may allocate the cost of removal among the liable parties using such factors as the department determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution from any other person responsible for the cost of removal of the dam pursuant to any other statute or under common law.
d. (1) Whenever the commissioner determines that a dam is in imminent danger of failure and has reasonable cause to believe that danger to life or property may be anticipated from the reservoir, dam or appurtenant structures located therein, and the owner of the dam or person having control of the reservoir or dam has failed to comply with an order to repair the dam issued pursuant to subsection a. of this section or R.S.58:4-6, or to take such interim measures as the department determines are appropriate, including reducing the amount of water impounded by the dam or breaching the dam, the department may, in addition to actions authorized pursuant to R.S.58:4-6, enter upon any and all properties wherein the reservoir, dam or appurtenant structures are located and, using resources and personnel available to the department, remove or cause to be removed the dam or appurtenant structures located therein, allowing the water to flow freely.
Prior to any action by the department pursuant to this subsection, the owner or person having control of the reservoir or dam, shall, no later than 60 days after receipt of a notice from the department of a pending removal action, submit to the department, in writing, an acceptable implementation plan addressing the proposed actions to be taken regarding the failed or failing reservoir or dam.
(2) Any expenditures made by the department pursuant to this section shall constitute, in each instance, a debt to the State. The debt shall constitute a lien on all property owned by the owner or person having control of the reservoir or dam when a certificate of debt, incorporating a description of the property of the owner or person having control of the reservoir or dam subject to the repair, and related costs, is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment and order docket the name and address of the owner or person having control of the reservoir or dam and the amount of the lien as set forth in the certificate of debt. Upon entry by the clerk, the lien, to the amount committed by the department for dam repair, shall attach to the revenues and all real and personal property of the owner or person having control of the reservoir or dam, whether or not the owner or person having control of the reservoir or dam is insolvent.
The certificate of debt filed pursuant to this paragraph which affects the property of an owner or person having control of a reservoir or dam subject to the dam repairs shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this certificate of debt shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this certificate of debt.
The certificate of debt filed pursuant to this subsection which affects any property of an owner or person having control of a reservoir or dam, other than the property subject to the repairs, shall have priority from the day of the filing of the certificate of debt over all other claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a certificate of debt pursuant to this subsection.
Whenever the owner or person having control of the reservoir or dam is a private lake association or other body representing owners of property adjacent to the reservoir or lake created by the dam or impoundment, liens may be imposed upon the individual owners of the property represented by the association. An owner whose property has such a lien imposed may release the property from a lien claimed under this subsection by filing with the clerk of the Superior Court a cash or surety bond, payable to the department in the amount of the sums expended by the department pursuant to this section, including attorney's fees and court costs, or the value of the property after the abatement action is complete, whichever is less.
e. The provisions of this section shall not limit the use of other remedies available to the department pursuant to law.
f. The commissioner may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules or regulations necessary to implement the provisions of this section.
a. Whenever, on the basis of available information, the Commissioner of Environmental Protection finds that a person has violated any provision of the "Safe Dam Act," P.L.1981, c.249 (C.58:4-8.1 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) Levy a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies prescribed in this section or by any other applicable law.
b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative order: (1) specifying the provision or provisions of the law, rule, regulation, permit or order, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction, including an order or judgment as will effectually secure the persons interested from danger of loss from the breaking of a dam. The court may proceed in the action in a summary manner or otherwise;
(2) Recovery of the reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by a violation for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the "Environmental Services Fund," established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and kept separate from other receipts deposited therein, and appropriated to the department for the removal of dams in the State, except that compensatory damages to privately held resources shall be paid by specific order of the court to any persons who have been aggrieved by the unauthorized regulated activity;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to assess a civil administrative penalty of not more than $25,000 for each violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to adoption of the regulation, the commissioner may, on a case-by-case basis, assess civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty to be assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may assess any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall: (1) identify the section of the law, rule, regulation, permit or order violated; (2) recite the facts alleged to constitute a violation; (3) state the basis for the amount of the civil penalties to be assessed; and (4) affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order specifying the amount of the fine imposed. If no hearing is requested, the notice shall become final after the expiration of the 35-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative penalty is in addition to all other enforcement provisions in this act and in any other applicable law, rule, or regulation, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1981, c.249 or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this section.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under the provisions of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to the provisions of P.L.1981, c.249, or of any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not more than $50,000, or by imprisonment, or both, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes.
g. In addition to the penalties prescribed in this section, the commissioner may record a notice for a violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, which shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed. Any fees or other charges that are assessed by either the clerk or register of deeds and mortgages of the county wherein the affected property is located or the department for the recording of the notice of violation on the deed required pursuant to this subsection shall be paid by the owner of the affected property or the person committing the violation. The commissioner shall immediately order the notice removed once the violation is remedied or upon conditions set by the commissioner.
h. Each owner or person having control of a reservoir or dam shall provide, upon request of the department, any information the department requires to determine compliance with any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto.
i. (Deleted by amendment, P.L.2007, c.246).
j. All penalties collected pursuant to this section or sums collected pursuant to R.S.58:4-5 shall be deposited in the "Environmental Services Fund," established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and kept separate from other receipts deposited therein, and appropriated to the department for the removal of dams in the State.
k. The department shall have the authority to enter any property, facility, premises, or site for the purpose of conducting inspections to determine the condition of any dam, or to conduct inspections of ordered repairs or to otherwise determine compliance with the provisions of P.L.1981, c.249.
The commissioner may, when provided with sufficient funds, employ personnel for the inspection of existing reservoirs and dams and the supervision of the erection of new reservoirs and dams in this State or between this and any other state so that said structures may be built with due regard for the safety of property and life which might be endangered by improper construction thereof.
This act shall be known and may be cited as the "Safe Dam Act."
The Commissioner of Environmental Protection shall, by rule, establish a periodic dam safety inspection and reporting procedure, on an annual or longer term basis, for the owner of any dam meeting the criteria contained in R.S. 58:4-1. The owner shall have a professional engineer inspect the dam and prepare and submit a report containing such information as the commissioner may require, concerning the safety of said dam and appurtenant structures. Every dam which raises the waters of any stream more than 70 feet above its usual mean low-water height or which impounds more than 10,000 acre-feet of water shall be inspected on an annual basis by a professional engineer retained by the owner, in the company of a professional engineer assigned from the Department of Environmental Protection.
Where a reservoir or dam has been in existence 20 years and the owners of land along the shores above the dam or on the reservoir have made or shall have made permanent improvements on the land or where the shores have become a populated community, depending upon the permanency of the condition created, or where the reservoir or dam has become a valuable resource for the quality of life in the municipality in which the reservoir or dam is located, and a petition signed by a majority of the landowners along the shore of any pond formed by the reservoir or dam, or by any number of residents of the municipality in which the reservoir or dam is located, or by the governing body of the municipality, protesting against the removal of the reservoir, water or dam or the decommissioning of the reservoir or dam has been filed with the commissioner, the owner or owners of the reservoir or dam shall not, without the consent of the commissioner, tear down, destroy or abandon the reservoir or dam, or, except for the purpose of making necessary repairs, withdraw the water below the usual low-water mark, or maintain the water at the reduced level.
When a petition has been filed protesting against the removal of any reservoir, water or dam or against the decommissioning of any reservoir or dam as provided in R.S.58:4-9, the commissioner shall hold a public hearing, upon 30 days' notice to all parties interested, and following prior notice published 30 days before the hearing in at least one newspaper of general circulation in the municipality in which the reservoir or dam is located. Following this public hearing, the commissioner may make a determination concerning the removal of the reservoir, water or dam or decommissioning of the reservoir or dam and may then establish and fix a permanent low-water mark. Should it appear that the maintenance of the reservoir or dam would be an undue burden upon the owner thereof, the commissioner shall enter into negotiations with the landowners interested around the reservoir or above the dam, the governing body of the municipality in which the reservoir or dam is located, and any other parties to the petition filed with the commissioner protesting against the removal of the reservoir, water or dam or the decommissioning of the reservoir or dam, for the purpose of determining how and by whom the expenses of maintenance shall be paid.
The Legislature further finds and declares that these conditions have led to the collapse of dams, polluted lakes, stream flooding and property damage to homes, businesses, lake communities and public utilities; and that federal, State and local financial resources have not met adequately the costs of remediating the sites and facilities affected by these conditions.
The Legislature therefore determines that it is in the public interest to provide additional funding for State programs that are responsible for remediating, and for providing assistance to other public or private entities to remediate, the conditions described herein.
b. Moneys in the Dam, Lake and Stream Project Fund are appropriated for State, local or privately-owned projects and may be combined with other State or non-State funding sources.
c. Moneys appropriated from the Dam, Lake and Stream Project Fund may be used by the department to provide loans bearing an interest rate of not more than 2% or other forms of assistance, other than full or matching grants, to owners of private dams, lakes or streams, in accordance with criteria for existing programs established under previous State bond acts, legislative initiatives, or federal aid guidelines.
d. (1) Loans awarded under this section to owners of private dams or lake associations shall require local government units to act as co-applicants. The cost of payment of the principal and interest on these loans shall be assessed, in the same manner as provided for the assessment of local improvements generally under chapter 56 of Title 40 of the Revised Statutes, against the real estate benefited thereby in proportion to and not in excess of the benefits conferred, and such assessment shall bear interest and penalties from the same time and at the same rate as assessments for local improvements in the municipality in which they are imposed, and from the date of confirmation shall be a first and paramount lien upon the real estate assessed to the same extent, and be enforced and collected in the same manner, as assessments for local improvements.
(2) Notwithstanding the provisions of paragraph (1) of this subsection or of any other law to the contrary, no project for which loans to owners of private dams or lake associations are awarded under this section shall be considered a municipal capital improvement, nor shall the amount of any such loan be considered part of the municipal capital budget, and no such loan shall be subject to the review or approval of the Local Finance Board established under P.L.1974, c.35 (C.52:27D-18.1).
e. The moneys appropriated under this section shall be allocated commencing with the fiscal year of enactment in such a manner that (a) the amount allocated to dam restoration and repair shall be $4,730,000 (b) the amount allocated to lake dredging and restoration and to stream cleaning and desnagging shall be $2,000,000 and (c) the amount allocated to the Department of Environmental Protection for repair of department-owned dams shall be $0.00.
f. In addition to the number of individuals employed as inspectors of dams on October 1, 2000, the Department of Environmental Protection is directed to employ nine additional individuals as inspectors of dams and to keep all of the positions, including both those in which individuals were employed as inspectors of dams on October 1, 2000 and those to which the nine additional individuals shall have been appointed thereafter, with employees having educational backgrounds or skills in engineering necessary to conduct the inspection of dams and otherwise to carry out the objectives of this act. The salary costs for the nine additional staff positions shall be charged against the moneys appropriated under subsection a. of this section and allocated under subparagraph (a) of paragraph (2) of subsection e. hereof.
(2) As a condition of granting permission pursuant to paragraph (1) of this subsection, the Department of Environmental Protection or the respective administrative body shall require that all excavation and exploration for archaeological findings be conducted in the least destructive manner possible. The administering authority or commission may also, in its discretion, require a person or persons granted such permission to consult with the Department of Environmental Protection prior to undertaking an approved project to verify that the methods and techniques selected are the least destructive and most appropriate to the site.
(3) No person may sell, transfer, exchange, transport, purchase, receive or offer to sell, transfer, exchange, transport, purchase or receive any archaeological findings originating on any reservoir lands administered by the Department of Environmental Protection or by a State authority or commission without the written permission of the department or the respective administrative body as appropriate.
b. A person who knowingly violates, or who solicits or employs any other person to violate, the provisions of subsection a. of this section shall be subject to the following penalties: a fine of not less than $750 nor more than $1,500 for the first offense; a fine of not less than $1,500 nor more than $3,000 for the second offense; and a fine of not less than $3,000 nor more than $5,000 for any subsequent offense. Penalties assessed pursuant to this subsection shall be collected in a civil action by a summary proceeding. Any vessel, vehicle or equipment used in the commission of the violation shall be subject to confiscation and forfeiture to the department or to the State authority or commission, if warranted, as determined by the courts. All fines collected shall be remitted to the Department of Environmental Protection to be used for Statewide preservation, remediation or protection of archaeological sites. Further, restitution and damages may be ordered to compensate the department or State authority or commission for the cost of remediating any violation of this section and for the value of any lost, damaged, or destroyed archaeological findings. The State authority or commission shall consult with the department for proper remediation of affected lands. Any archaeological findings obtained as a result of a violation of this section shall be subject to confiscation, forfeiture, and return to the proper owner. Upon recovery, the archaeological findings shall be deposited with the Department of Environmental Protection for verification of ownership. The Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations to ensure the appropriate disposition of any confiscated, forfeited, or returned archaeological findings. The return of archaeological findings to a State authority or commission shall be made upon verification of ownership by the Department of Environmental Protection that the State authority or commission owns the archaeological findings.
c. The Department of Environmental Protection and each State authority and commission administering reservoir lands shall provide for exceptions to the prohibitions set forth in subsection a. of this section for archaeological findings of de minimis value innocently discovered on any reservoir lands.
d. Notwithstanding any provision of this section to the contrary, examination or retrieval of artifacts, or scientific research, conducted by a State department, agency, commission, authority or corporation otherwise required or permitted by federal or State law are exempt from the provisions of this section.
(1) possesses a valid New Jersey license of the proper class; or
(2) secures the services of a person possessing a valid New Jersey license of the proper class.
The department shall establish, by regulation, classes of licenses required for all well drilling and pump installing activities.
b. No person, partnership, or corporation shall employ more than three other well drillers in well drilling in this State unless the well drillers' supervisor is qualified as a master well driller pursuant to the criteria established therefor under the rules and regulations of the department.
c. No other agency or political subdivision of the State is authorized to license or to establish standards, requirements, or specifications for well drilling or pump installation regulated pursuant to P.L.1947, c.377 (C.58:4A-5 et seq.).
Each member of the board, except those who are employees of the department, shall receive actual and necessary expenses, such charges to be approved by the commissioner and paid from monies in the "Environmental Services Fund" established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), as are appropriated to the department for this purpose.
The board shall meet on the call of the commissioner within 30 days after its members are first appointed and thereafter shall hold at least one meeting each year. A special meeting of the board shall be called by the commissioner, or his duly authorized representative, whenever the necessity for such a meeting exists.
a. It shall be the duty of the board to recommend and consent to examination questions, review applications to ascertain the experience and qualifications of persons applying for a license, review examination results, review continuing education certification required for license renewals pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11) and recommend to the department when licenses should be issued, renewed, or denied. A board recommendation that a license be issued or denied shall be adopted at the next scheduled meeting following completion of the examination therefor. A board recommendation that a license be renewed shall be adopted at the next scheduled meeting following acceptance of continuing education certification therefor. Examinations may be oral or written, and may include observation of applicants for any license in the field, or any combination thereof, and shall cover the proper methods and regulatory procedures of well drilling and pump installation.
b. It shall, by a majority of all its members, formulate and recommend to the department rules, regulations, and standards, including construction standards for engaging in well drilling or pump installing and a continuing education program for well drillers and pump installers which shall be applicable to any person licensed under the provisions of P.L.1947, c.377 (C.58:4A-5 et seq.).
(2) The department shall require each well driller or pump installer, as a condition for license renewal pursuant to section 14 of P.L.1947, c.377 (C.58:4A-18), to complete any continuing education requirements established by rules and regulations adopted by the department pursuant to this section.
b. The department shall adopt various classifications of well driller licenses to reflect the different well drilling disciplines. Commencing July 5, 1997, the department:
(1) shall issue a new well driller license only for the classification of well driller for which an applicant qualifies, based upon passing a licensing examination for that classification;
(2) shall issue a new master well driller license only to an applicant who has passed the examination for each classification of well driller established by the department pursuant to section 1 of P.L.1947, c.377 (C.58:4A-5); and
(3) shall issue a renewal of a master well driller license, a well driller license, or a pump installer license only to an applicant who has provided evidence to the department of completion of the continuing education requirements established pursuant to subsection c. of this section.
c. The department shall establish rules, regulations and standards for continuing education of well drillers and pump installers as a condition for license renewal and shall develop and implement this continuing education program. The department may, in its discretion, waive requirements for continuing education on an individual basis for reasons of hardship, including, but not limited to, active duty in the military or reserves, illness or disability, or other good cause.
The charges against any well driller or pump installer against whom complaint is made shall be in writing and sworn to by the complainant, and filed with the board.
Such charges, unless dismissed by the board as unfounded or trivial, shall be heard and determined by the board within three months after the date on which they are preferred unless the board shall determine that good cause exists for further delay. The board shall have the power at any such proceeding to require the attendance of witnesses before it, and the production of such books, papers and documents as it may require, and to issue or authorize the issuance of subpoena therefor.
The time and place of the hearing, which may be adjourned from time to time, shall be fixed by the board. A copy of the charges, together with a notice of the time and place of hearing, shall be served on the accused by the board personally or by certified mail, addressed to his last known place of residence at least 30 days before the day fixed for the hearing. At the hearing the accused shall have the right to appear personally or by counsel and to cross-examine witnesses against him and to produce evidence in his defense.
The commissioner may accept, reject, or modify the recommendation of the board. A decision of the commissioner shall represent final agency action for the purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
b. Any installation, removal, alteration, or repair of well pumping equipment or appurtenances shall be under the immediate on-site supervision of a licensed pump installer or a licensed well driller, and the name of the pump installing contractor or well drilling contractor shall be displayed on the equipment used in the installation, removal, alteration or repair.
c. Nothing in P.L.1947, c.377 (C.58:4A-5 et seq.) shall be construed as applying to the drilling of blast holes in quarries or mines; or to persons licensed pursuant to, and acting in accordance with, P.L.1968, c.362 (C.45:14C-1 et seq.); or to excavations that do not endanger or threaten subsurface or percolating waters or endanger life and that are not defined as a well pursuant to section 19 of P.L.1947, c.377 (C.58:4A-23), including, but not limited to, septic system installations, wetlands determinations, and site suitability studies.
(2) The department shall adopt, by regulation, a general permit for the construction of certain categories of wells up to a depth of 50 feet and a maximum diameter to be set by the department to protect public health and safety.
b. The department shall adopt and periodically revise, by regulation, well permit requirements, including emergency permits, and regulations establishing a fee schedule setting forth reasonable application and permit fees to cover the costs of administering permit and permit enforcement programs. Permit fees shall not include the cost to the department of operating well drilling equipment, except when the department seals a well. The department may allocate a portion of the permit fees to local health agencies certified pursuant to P.L.1977, c.443 (C.26:3A2-21 et seq.) for administration and enforcement of permits issued pursuant to this act. Upon adoption of a fee schedule pursuant to this subsection, the fees set forth in the fee schedule shall supercede the fees set forth in subsection d. of this section.
c. As a further condition to the issuance of a permit, the department may require that accurate samples of the materials encountered in constructing the proposed well shall be preserved and delivered to the department. Within 90 days of the completion of the construction of any permitted well, a well record, on forms prescribed and supplied by the department, shall be filed by the driller with the department giving the log (i.e. description of materials penetrated), the size and depth of the well, the diameters and lengths of casing and screen installed therein, the static and pumping levels and the yield of the well, and such other information pertaining to the construction or operation of the well as the department may require.
d. Pending adoption by regulation of a permit fee schedule by the department in accordance with subsection b. of this section, the following permit fees shall be required: (1) a fee of $50 for each permit for a well with a pumping capacity of under 70 gallons per minute; (2) a fee of $125 for each permit for a well with a pumping capacity of 70 gallons or more per minute; and (3) a fee of $100 for each site-wide permit. Payment of the fee shall accompany each permit application.
b. There is established within the department a special dedicated non-lapsing account into which any person licensed pursuant to P.L.1947, c.377 (C.58:4A-5 et seq.) may deposit and maintain such funds as shall be sufficient to cover permit or license renewal fees that the licensee may accrue from permit or license renewal applications. Upon authorization of the licensee, the department may withdraw from this account permit application or license renewal fees for any well permit or license renewal application.
b. A license once issued, unless revoked or suspended, may be renewed at any time within one year before its expiration date on application therefor and payment of the required renewal fee, and any such renewal shall become effective on and after July 1 next following the date of renewal. A license not renewed prior to its expiration date may be reinstated within six months of the expiration date by payment of the license renewal fee.
After the six-month period, renewal shall require the passing of an examination prescribed by the department pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11) for applicants for new licenses.
b. The department shall adopt, and may periodically amend, by regulation, a fee schedule setting forth reasonable fees for license applications and examinations, and for issuance and renewal of any license in amounts adequate to cover the costs of administering all licensing and license enforcement programs, including the continuing education program established by the department pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11). All revenues derived from this section, section 10 of P.L.1947, c.377 (C.58:4A-14), and section 15 of P.L.1995, c.312 (C.58:4A-14.1) shall be deposited in the "Environmental Services Fund" established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and shall be used for the administration of well programs pursuant to P.L.1947, c.377 (C.58:4A-5 et seq.), including the continuing education program established by the department pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11).
"Commissioner" means the Commissioner of Environmental Protection.
"Well" means a hole or excavation larger than a minimum diameter and depth established by department regulations pursuant to section 1 of P.L.1947, c.377 (C.58:4A-5) that is drilled, bored, cored, driven, jetted, dug, or otherwise constructed for the purpose of removal or emplacement of, or investigation of, or exploration for, fluids, water, oil, gas, minerals, soil, or rock, or for the installation of an elevator shaft.
"Well drilling" means the drilling, digging, driving, boring, coring, sealing, jetting, or other construction or repair of any well.
"Well driller" means a person possessing a New Jersey license as a well driller of the proper class, including but not limited to test borers and such other classifications as the department establishes by regulation, who engages in well drilling or pump installing.
"Master well driller" means a well driller possessing a New Jersey master well driller's license who has at least five years' experience in the trade, business, or calling of well drilling, including at least two years of experience as a licensed journeyman well driller in this State, and is skilled in the planning, superintending, and practical construction of wells, and the installation and repair of well pumping equipment and appurtenances thereto.
"Journeyman well driller" means a well driller possessing a New Jersey journeyman well driller's license who has at least three years of experience under the supervision of a New Jersey licensed well driller in the trade, business, or calling of well drilling, with concentration in the practical construction of wells, and the installation and repair of well pumping equipment and appurtenances thereto, or who satisfies equivalent experience and other requirements as prescribed by the department.
"Pump" means a mechanical device used to remove or emplace gases, water or fluids from or into a well.
"Pump installer" means a person possessing a New Jersey license as a pump installer who has at least one year of experience under the supervision of a New Jersey licensed well driller or a New Jersey licensed pump installer, and is qualified to engage in pump installing.
"Pump installing" means the installation, removal, alteration, or repair of well pumping equipment and appurtenances thereto in connection with any well including connecting lines between a well and storage tank or appurtenance thereto.
"Board" means the "State Well Drillers and Pump Installers Examining and Advisory Board."
"Department" means the Department of Environmental Protection.
"License of the proper class" or "license" means a document issued to a person pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11) authorizing the individual to engage and perform work in the trade, business, or calling of well drilling, or pump installing.
1947,c.377,s.19; amended 1951,c.261,s.3; 1952,c.84; 1968,c.308,s.12; 1979,c.398,s.14; 1995,c.312,s.21.
(1) A civil administrative penalty imposed pursuant to subsection c. of this section;
(2) A civil penalty collected, as provided in subsection d. of this section, in an action by the department, or a political subdivision of the State, in a court of competent jurisdiction in a summary proceeding pursuant to "the penalty enforcement law," (N.J.S.2A:58-1 et seq.);
(3) A civil action in accordance with subsection b. of this section; or
(4) An order by the department requiring a violator to comply with the provisions of this act or any rules or regulations adopted pursuant thereto in accordance with subsection e. of this section.
Use of any remedy available pursuant to this subsection shall not preclude the use of any other remedy available thereunder, except that not more than one monetary penalty may be assessed for any single violation. Any penalties or costs collected in an action brought by a political subdivision pursuant to paragraph (2) of this subsection shall be payable to that political subdivision.
Acceptance by any person, partnership, or corporation of any money or other consideration of value for the construction of any well or installation or repair of a pump by anyone other than a licensed well driller of the proper class or licensed pump installer, shall be deemed prima facie evidence of the violation of this act.
b. The department may institute an action or proceeding in the Superior Court for injunctive and other relief for any violation of P.L.1947, c.377 or of any rule, regulation, order, or directive issued pursuant thereto, and the court may proceed in the action in a summary manner. Such relief may include, singly or in combination:
(1) Assessment of the reasonable costs of any investigation, inspection or monitoring survey that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(2) Assessment of the reasonable cost incurred by the State in terminating any adverse effects of a violation on water quality or other elements of the environment;
(3) Assessment of compensatory damages for any loss or destruction of wildlife, fish or other aquatic life, or other natural resources, and for any other actual damages;
(4) The recovery of the costs of sealing a well as may be required pursuant to section 4 of P.L.1995, c.312 (C.58:4A-4.2a); and
(5) A temporary or permanent injunction.
Compensatory damages collected pursuant to paragraph (3) of this subsection shall be paid to the General Fund, except that compensatory damages shall be paid by specific order of the court to any persons who have been aggrieved by the violation. Recovery of assessments pursuant to paragraph (4) of this subsection shall be paid into the "well sealing fund" established pursuant to section 5 of P.L.1995, c.312 (C.58:4A-4.2b).
c. The department may assess, in accordance with a uniform policy adopted therefor, a civil administrative penalty of not more than $5,000 for each violation directly related to the construction of a well, and a civil administrative penalty of not more than $1,000 for each violation that is not construction-related, and each day during which a violation continues shall constitute an additional, separate and distinct offense.
Any amount assessed under this subsection shall fall within a range established by regulation by the department for violations of a similar type, seriousness, and duration.
In adopting rules for a uniform civil administrative penalty policy for determining the amount of a civil administrative penalty to be assessed, the department shall take into account the type, seriousness, extent and frequency of a violation, the harm to the public health or the environment resulting from the violation, the economic benefits from the violation gained by the violator, the degree of cooperation or recalcitrance of the violator in remedying the violation, any measures taken by the violator to avoid a repetition of the violation, and any other pertinent factors that the department determines measure the seriousness or frequency of the violation, or conduct of the violator.
No civil administrative penalty shall be levied pursuant to this subsection until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, or order or directive violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil administrative penalties to be imposed; and a statement of the party's right to a hearing. The party shall have twenty days from the receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the department may issue a final order assessing a penalty up to the amount of the penalty specified in the order. If no hearing is requested, the notice shall become a final order on the twenty-first day after receipt of the notice. Payment of the assessment is due when a final order is issued, or the notice becomes a final order.
d. Any person who violates the provisions of P.L.1947, c.377, or any rule or regulation adopted, or order or directive issued pursuant thereto, or a court order issued pursuant to subsection b. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection c. of this section, shall be subject, upon order of a court, to a civil penalty of not more than $5,000 for each violation directly related to the construction of a well, and a civil administrative penalty of not more than $1,000 for each violation that is not construction-related, and each day the violation continues shall constitute an additional, separate, and distinct offense.
Any civil action to impose a penalty pursuant to this subsection may be commenced in the Superior Court or in the municipal court and that penalty may be enforced and collected with costs in a summary proceeding pursuant to "the penalty enforcement law," N.J.S.2A:58-1 et seq.
e. Whenever the department finds that a person has violated any provision of P.L.1947, c.377, or any rule or regulation adopted, or order or directive issued pursuant thereto, the department may issue an order specifying the provision or provisions of P.L.1947, c.377, or the rule, regulation, or order or directive issued, pursuant thereto, of which the person is in violation, citing the action which constituted the violation, ordering abatement of the violation, and giving notice to the person of the right to a hearing on the matters contained in the order. The ordered party shall have 20 calendar days from receipt of the order within which to deliver to the department a written request for a hearing. Such order shall be effective upon receipt and any person to whom such order is directed shall comply with the order immediately. A request for hearing shall not automatically stay the effect of the order.
f. The department may compromise any remedy and settle any claim for a penalty under this section in the amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.
If any part, section, subsection, sentence, clause or phrase of this act shall be held unconstitutional or void for any reason, such decisions shall not affect the validity of the remaining portions of this act.
This act shall take effect immediately, except that section twenty shall be inoperative until ninety days thereafter.
The Legislature further finds that the area around Lake Hopatcong, originally a seasonal community, has become a year-round residential community; that these residences and other buildings are currently served by individual septic systems, many of which have been failing for some time, causing a significant impact upon the lake's water quality; and that the installation of a sewer system for the residents currently living around Lake Hopatcong is necessary to eliminate the pollution caused by these septic systems.
The Legislature further finds that water quality in Lake Hopatcong has been degraded over time by the introduction of nutrients and other pollutants from significant sources other than septic systems, including stormwater runoff and other nonpoint sources of pollution, which reduce oxygen in the water, thereby causing weeds to grow uncontrollably on the lake bottom; and that these weeds are a hazard to recreational boaters and diminish fishing, swimming, and other recreational activities on the lake.
The Legislature further finds that Lake Hopatcong is the largest freshwater lake in the State; that it serves as an emergency source of drinking water for the region and supports a range of recreational uses that contribute significantly to the region's economy; and that improving water quality in the lake is important to protect both environmental and economic interests in the region.
The Legislature therefore determines that it is in the public interest to create a commission composed of both local and State officials and representatives to oversee and safeguard Lake Hopatcong as a natural, scenic, and recreational resource to ensure that the lake may be enjoyed to the fullest possible measure by citizens of, and visitors to, the State both now and in the future.
b. Each county and municipal appointing authority as prescribed pursuant to subsection a. of this section may also respectively appoint an alternate member for each regular member appointed by the county or municipal appointing authority to act in the absence or disability of the regular member, and while so acting an alternate member shall have all the powers, including voting powers, of the regular member.
c. (1) The chairperson of the commission shall serve a term of three years and until a successor shall have been appointed and qualified. A chairperson may be reappointed to successive terms.
(2) Each member of the public appointed by the Governor shall serve a term of two years and until a successor shall have been appointed and qualified; except that of the two members of the public first appointed, one shall serve a term of two years and the other a term of one year. Members of the public appointed by the Governor may be reappointed to successive terms.
(3) Each member or alternate member appointed by a county or a municipality shall serve a term of two years and until a successor shall have been appointed and qualified; except that each member and alternate member first appointed by Sussex county, Mount Arlington borough, and Roxbury township shall serve a term of one year, and thereafter each member and alternate member appointed by that county and those two municipalities shall serve a term of two years and until a successor shall have been appointed and qualified. Members and alternate members may be reappointed to successive terms.
d. Vacancies in the appointed positions on the commission shall be filled in the same manner as the original appointments were made but for the unexpired term only.
e. Members of the commission shall serve without compensation, but the commission may, within the limits of funds appropriated or otherwise made available to it, reimburse members for actual expenses necessarily incurred in the discharge of their official duties.
f. Members of the commission shall serve at the pleasure of the relevant appointing authority.
b. The commission shall meet regularly as it may determine, but not less than on a quarterly basis. Meetings of the commission shall be at such times and places as the commission deems appropriate and shall be subject to the provisions and requirements of the "Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6 et seq.).
The commission shall also meet at the call of the Governor or of the chairperson.
c. A majority of the membership of the commission shall constitute a quorum for the transaction of commission business. Action may be taken and motions and resolutions adopted by the commission at any meeting thereof by the affirmative vote of a majority of the full membership of the commission, except that any action to recommend or adopt an annual operating or capital budget shall require an affirmative vote of at least two-thirds of the full membership of the commission.
d. The commission shall be entitled to call to its assistance, and avail itself of the services of, such employees of the State, the two member counties, or the four member municipalities, or any political subdivisions, instrumentalities, entities, agencies, or authorities thereof, as it may require and as may be made available to it for the purpose of carrying out its powers, duties, and responsibilities under this act.
e. The commission may, within the limits of funds appropriated or otherwise made available to it for those purposes, employ an executive director and other professional, technical, maintenance, and clerical staff, and incur such other miscellaneous expenses, as it may deem necessary in order to carry out its powers, duties, and responsibilities pursuant to this act.
a. sue and be sued;
b. adopt bylaws for the regulation of its affairs and the conduct of its business;
c. make and execute contracts and all other instruments necessary or convenient for the exercise of its powers, duties, and responsibilities under this act;
d. establish, construct if necessary, and maintain such offices and facilities as may be necessary for the transacting of its business; and, if deemed appropriate by the commission, establish, or construct if necessary, those offices and facilities on land at Lake Hopatcong State Park or on State land at other appropriate locations around or nearby the lake;
e. contract for professional and technical assistance; and
f. contract for and accept assistance, including but not limited to gifts, grants, or loans of funds or of property from the federal government or any agency or instrumentality thereof, from any agency or instrumentality of the State or local government, or from any other public or private source, and to comply, subject to the provisions of this act, with the terms and conditions thereof.
a. conduct water quality and water quantity monitoring of Lake Hopatcong to assess conditions and changes thereto over time, and identify the causes and sources of environmental threats and impacts to Lake Hopatcong and its watershed;
b. assess present and projected development, land use, and land management practices and patterns, and determine the effects of those practices and patterns upon the natural, scenic, and recreational resources of Lake Hopatcong and its watershed;
c. develop plans, strategies, policies, ordinances, and funding mechanisms necessary to protect, preserve, restore, maintain, manage, and enhance Lake Hopatcong and its watershed, to be implemented by those entities with representatives on the commission;
d. coordinate with, and make recommendations to, the Department of Environmental Protection with respect to any State plan or program for watershed management, water quality, water supply, stormwater management, nonpoint source pollution, or wastewater management for the area that includes Lake Hopatcong and its watershed;
e. recommend appropriate State legislation and administrative action pertaining to the protection, preservation, restoration, maintenance, management, and enhancement of Lake Hopatcong and its watershed;
f. encourage and assist in the creation of special local improvement districts for purposes beneficial to Lake Hopatcong and its watershed, including control of stormwater runoff and nonpoint source pollution, and the preservation of significant environmental areas, including wetlands, to control stormwater runoff and nonpoint source pollution;
g. review and assess the potential impact upon Lake Hopatcong and its watershed of environmental permit applications pending before or received by the Department of Environmental Protection and provided to the commission pursuant to subsection b. of section 8 of this act, and provide recommendations to the Department of Environmental Protection for appropriate action thereon;
h. review and assess the potential impact upon Lake Hopatcong and its watershed of proposed amendments and revisions to municipal master plans, zoning and other ordinances governing land use and development, and applications for specific development projects, which have been provided to the commission pursuant to section 9 of this act, and provide recommendations to the appropriate municipal agency for appropriate action thereon;
i. conduct, manage, and coordinate specific activities and projects pertaining to the protection, preservation, restoration, maintenance, management, and enhancement of Lake Hopatcong and its watershed, including, but not limited to, weed control measures, dredging, installation and maintenance of boat sewage pump outs, and environmental education;
j. encourage individuals, corporations, associations, and organizations to preserve and enhance the natural scenic beauty, and protect and preserve the purity of the waters, of Lake Hopatcong and its watershed, and to engage in environmental education of the public for such purposes; and
k. establish advisory committees and enlist and accept the support and cooperation of organizations of property owners and others interested in promoting the purposes and objectives of this act.
b. The Department of Environmental Protection shall provide to the commission notice of any permit application pending before or received by the department for an activity that may impact upon Lake Hopatcong or its watershed, and request that the commission review and evaluate the permit application to assess the potential impact of the activity proposed therein upon Lake Hopatcong and its watershed and provide the commission's recommendations for appropriate action thereon.
c. The Division of Fish and Wildlife shall consult with the commission prior to engaging in any fish stocking or fishery management activities affecting Lake Hopatcong.
b. All files, papers, and records of the Lake Hopatcong Regional Planning Board are transferred to the Lake Hopatcong Commission.
c. All State and federal appropriations, grants and other moneys available and to become available to the Lake Hopatcong Regional Planning Board are transferred to the Lake Hopatcong Commission, and shall be available for the objects and purposes for which appropriated, subject to any terms, restrictions, limitations or other requirements imposed by State or federal law.
b. Notwithstanding any provision of law, rule, or regulation to the contrary, any State or federal funds appropriated, allocated, or designated by law, rule, regulation, or otherwise for the protection, preservation, restoration, maintenance, management, or enhancement of Lake Hopatcong shall be deposited in the "Lake Hopatcong Fund" for expenditure in furtherance of the purposes and objectives of P.L.2000, c.175. This section shall not apply to State or federal funds appropriated, allocated, or designated for Lake Hopatcong State Park.
The North Jersey water supply district, consisting of the counties of Sussex, Warren, Hunterdon, Passaic, Morris, Monmouth, Somerset, Bergen, Hudson, Essex, Union and Middlesex, and the South Jersey water supply district, consisting of the remaining counties of the state, created and established by an act entitled "An act to create two water supply districts in the state of New Jersey, to be known respectively as the North Jersey water supply district and the South Jersey water supply district," approved March sixteenth, one thousand nine hundred and sixteen (L.1916, c. 70, p. 128), for the purpose of municipal water supplies, and the commission appointed pursuant to said statute, are continued. Each of said districts shall be entitled to all of the authority and shall be subject to all of the laws of this state concerning water districts so created.
The body having charge of the water supply in any municipality may, by resolution, determine that it is in the interests of the municipality that a district water supply commission be appointed for the water supply district wherein the municipality is located for the purpose of developing, acquiring and operating a water supply or a new or additional water supply for the use of the municipality and such other municipalities as may be authorized to join with it according to the terms of this chapter, and that a petition be presented to the governor praying for the appointment of such a commission and setting forth in general terms the location and character of the water supply desired.
The governor shall, by and with the advice and consent of the senate, appoint a commission consisting of seven members who shall be residents of the water supply district which they represent and not more than four of whom shall be of the same political party. The commissioners first appointed shall hold office, one for one year, one for two years, one for three years and two for four years. The two commissioners first appointed pursuant to P.L.2001, c.374 shall hold office for four years. Upon the expiration of the term of office of any commissioner, his successor shall be appointed by the governor, by and with the advice and consent of the senate, for a term of four years. Each commissioner shall hold his office until his successor has been appointed, and any vacancy in the membership of the commission shall be filled for the unexpired term in the manner provided for an original appointment. If the senate is not in session at the time of making any such appointment, the governor may make an ad interim appointment for a time extending only until such time as the senate shall convene.
Each commissioner shall receive a salary at the rate of fifteen hundred dollars per annum from the time of appointment until the execution of a contract for a water supply with any municipality, which salary shall be accumulative and payable upon the execution of any such contract, and thereafter each commissioner shall receive a salary at the rate of $7,500.00 per annum payable monthly, except the chairman of the commission, chosen as hereinafter provided, who shall receive a salary at the rate of $8,500.00 per annum. Such salaries shall be charged as an expense of the development and operation of any water supply contracted for hereunder.
The commission appointed for the North Jersey water supply district shall be known as the North Jersey district water supply commission, and the commission appointed for the South Jersey water supply district shall be known as the South Jersey district water supply commission. Each of said commissions shall have the powers hereinafter provided for.
Each said commission shall, as soon as may be after its appointment and qualification, and annually thereafter, organize by the choice of one of its members as chairman, and may from time to time appoint and at its pleasure remove a secretary, counsel and such engineers, assistants, agents, officers and servants as it may deem necessary to carry out the purposes of this chapter, and may determine their duties and compensation.
Each said commission, when duly organized, shall be deemed to be and shall become a body corporate with power to sue and be sued, and with the right to acquire, hold, use, lease and dispose of all such property as may be necessary for the uses and purposes for which the commission was created, and with all other necessary powers incident to corporate bodies.
The commission for itself or in behalf of its participating municipalities is authorized to accept grants of funds, grants of material and property from the United States of America, its agencies or instrumentalities, and may comply with any rules or regulations pertaining thereto.
Said commission shall keep accurate accounts of all receipts and disbursements, and shall make an annual report thereof to each of the municipalities with which it has a contract.
The board having charge of the water supply of any municipality in a water supply district for which a commission has been appointed as hereinbefore provided may, by resolution, petition the commission for a water supply or a new or additional water supply, and request that a preliminary estimate be made of the cost to the municipality of such supply, and shall agree to pay for the cost or its share of the cost of the preliminary estimate.
Upon the filing of such petition, the district water supply commission shall, after obtaining the consent of the state water policy commission, or its successor, to the diversion of waters for such water supply, as required by section 58:1-17 of this title, fix a time and place for a public hearing upon the application, and shall thereupon give notice of such hearing by publication by one insertion in at least one newspaper printed and published in each of the counties lying within the water supply district at least fifteen days prior to the hearing, at which hearing all persons and municipalities affected by the proposed plans may be heard for or against the granting of the application.
Upon said hearing any municipality appearing may signify its desire to acquire such existing water supply or to obtain such new or additional water supply, and its willingness to join with other municipalities to that end, and to bear its share of the preliminary expenses, and shall at the same time state the quantity of water which it desires.
The district water supply commission shall thereupon proceed to formulate plans for obtaining a water supply or a new or additional water supply for the municipality and any other municipalities that may desire water from such joint water supply, as provided for herein, and to estimate the cost thereof, the annual cost of operating the same, the probable share of the cost which each of the municipalities will be called upon to pay for its share of water supply and plant used in common with the other municipalities, and the cost of any distribution system, water supply or plant acquired or constructed for its individual use, and shall report the plans to the municipalities, together with a form of contract, providing for the raising and payment of the necessary funds to meet the cost of acquisition and operation.
If the plans to be formulated pursuant to this section involve obtaining water from the Highlands Region, as defined in section 3 of P.L.2004, c.120 (C.13:20-3), the district water supply commission shall consult with the Highlands Water Protection and Planning Council established pursuant to section 4 of P.L.2004, c.120 (C.13:20-4) prior to moving forward with any such plans or entering into any such contracts. The provisions of section 16 of P.L.2004, c.120 (C.13:20-16) shall apply to the district water supply commission.
With the submission of its preliminary report and form of contract to the municipalities interested, the commission shall notify the municipalities of a time, which shall be not less than thirty days from the delivery of the notice at the office of the clerk of the respective municipalities, within which the municipalities shall respectively, through the board or body having charge of its water supply, submit suggested modifications to such form of contract, or signify their acceptance thereof or their intention to withdraw from further participation in the proposed development or acquisition. The commission may extend the time for municipal action, hereinbefore or hereinafter required, beyond the time fixed by it in any such notice.
If such suggested modifications, the failure of any municipality to signify its acceptance of the contract, or the withdrawal of any municipality from further participation, necessitates the redrafting of the contract, the commission shall proceed so to do and shall submit the redrafted contract to the remaining municipalities, notifying them of a time, which shall not be less than fifteen days from the delivery of the notice at the office of the clerk of the respective municipalities, within which they shall signify their acceptance of the modified contract. Such process shall be continued by the resubmission of modified contracts for the consideration of which not less than fifteen days, as herein above provided, shall be allowed, until a form of contract has been agreed upon by the commission and one or more municipalities.
When said final form of contract shall have been accepted by all of the municipalities which are parties thereto, each of the municipalities shall forthwith introduce the proper ordinances or resolutions necessary to appropriate the moneys required to carry out the contract, and to authorize the execution thereof and take final action thereon as soon as it lawfully may. If any of the municipalities shall fail so to make the appropriations and to authorize the execution of the contract, the commission may, in its discretion, either take appropriate action to bring about the making of the appropriation and the execution of the contract by the municipality, or it may consider the project to have been abandoned by the municipality so failing and redraft the contract and submit the contract so redrafted to the remaining municipalities for action thereon as herein above provided in the case of the submission of modifications of the contract originally submitted.
Upon the execution of said contract, the district water supply commission shall forthwith proceed to carry out the same. For such purpose the commission may, in its own corporate name, but at the expense of the contracting municipalities as herein provided, acquire by purchase or condemnation any part or all of the water plant, water rights, easements, distribution system or other property of any existing private corporation or of any water company, including any contracts which said corporation or water company may have with any municipal or other corporation for the supply of water and may carry out said contracts.
The commission may acquire by purchase or condemnation lands, easements, rights of way, water rights and all other property and rights needful for the construction of any reservoir or the obtaining of any water supply, or the laying of any pipes or mains, or the doing of any work, necessary for the acquisition, construction or operation of such water supply.
The commission may construct or cause to be constructed such reservoirs, pipe lines, mains, pumping or filtration plant, standpipes, tunnels, buildings or other structures, machinery and appliances as may be necessary for the purposes of this chapter, and may hire all employees and purchase all materials necessary for such purpose, and shall have all other powers necessary or proper to provide all of the contracting municipalities in the water supply district with a sufficient water supply, including the right to contract with any municipality, corporation, person or other district water supply commission for the purchase, sale or exchange of any water, lands or other property, but the commission or any municipality shall not enter into any new contracts for the sale or delivery of water to any corporation, firm or person for use within the limits of any other municipality without the written approval and consent of such other municipality.
The commission may also arrange the exchange of lands and of water rights and water in any watershed in the district between any of the municipalities of the district by contract with the municipalities interested.
Any district water supply commission instituting an action for the acquisition of land or other property under and by virtue of the provisions of chapter one of the Title, Eminent Domain (s. 20:1-1 et seq.), may upon offer made to and refused by the owner of such property of such sum of money as in the opinion of the commission is the reasonable value of the property, pay the sum of money so offered into the Superior Court, there to await the determination of the action. Nothing contained in this section shall apply to any property devoted to or held for any public use by any board, commission or agency of this State, municipality or county of this State, or by any public utility as the same is defined by section 48:2-13 of the Title, Public Utilities.
The payment of such sum into the court shall operate to stop the running of interest upon any award thereafter made to the amount of such deposit and upon said payment the condemning party may forthwith enter in and upon the property sought to be acquired in the same manner and with like power as though the action in condemnation had been completed.
If, during the pendency of the action in condemnation, a good and sufficient deed of conveyance for the rights and interests sought to be condemned shall be executed and delivered to the authority seeking to condemn, the owners may forthwith apply to the court for the withdrawal of said funds.
The commission may construct water mains or pipe lines for the purposes provided for in this chapter along, under and over any watercourse, or under, over, along or across any street, turnpike, road, railroad, highway or other way, or public park or grounds, and in or upon private or public land under water, in such way and manner as not unnecessarily to obstruct or impede travel or navigation.
It may enter upon and dig up any street, highway or private or public land, for the purpose of constructing said work and appurtenances and for repairing and maintaining the same, and in a general way may do all other acts and things necessary, convenient and proper in connection with the acquisition, construction, operation and maintenance of said water supply. If any highway or public or private land is dug up and disturbed pursuant to the provisions of this chapter, the same shall be restored to its former condition as nearly as may be.
The commission may also alter or change the grade of any highway or public street, or relocate such highway or street where necessary for the purpose of constructing any reservoirs to be built in accordance with contracts authorized to be made by this chapter. If it shall become necessary to change the location or gradient of any canal or railroad, or the appurtenances thereof, the corporation owning or operating such canal or railroad shall be required to relocate or change the same as far as needful and to acquire the property necessary for such change and, if possible, to agree with the commission upon the details of such change, the cost thereof to be paid by the commission as a part of the expense of such reservoir construction. If the corporation is unable to agree with the owner of any land, property or right required to be taken by it in order to make such change, the commission shall, for the benefit of the corporation, acquire the same by condemnation or otherwise, provided such acquisition shall not impair the operation of the railroad or canal.
If the commission decides to construct any reservoir which may intercept or interfere with the flow of waters that may be part of the feeder of any canal or which may be claimed by any canal corporation, the commission may acquire from the canal corporation the necessary water rights for the reservoir by agreement with the canal corporation; and if it shall prove impossible to make such agreement, the commission may acquire by condemnation the necessary water flowage or other rights from the canal corporation.
a. Whenever any work to be performed or material to be furnished involves an expenditure exceeding $7,500.00 or the amount determined pursuant to subsection b. of this section, the commission shall cause to be prepared, and shall approve in public meeting, such form of contract or alternative contracts for the execution of the work or the furnishing of the materials, and payment therefor, as will in its judgment secure the execution of the work and the furnishing of the materials most efficiently, economically and expeditiously.
This subsection shall not prevent the commission from having any work done by its own employees, nor shall it apply to repairs, or to the furnishing of materials, supplies or labor, or the hiring of equipment or vehicles, when the safety or protection of its or other public property or the public convenience requires, or the exigency of the commission's service will not admit of such advertisement. In such case the commission shall, by resolution, passed by the affirmative vote of a majority of its members, declare the exigency or emergency to exist, and set forth in the resolution the nature thereof and the approximate amount to be so expended.
Thereupon the commission shall designate the time when it will meet at its usual place of meeting to receive proposals in writing for doing the work or furnishing the materials in accordance with, and upon the terms and conditions of, such form of contract or alternative contracts, and shall order its clerk to give notice, by advertisement inserted at least 10 days before the time of such meeting in at least two newspapers printed and circulating in the county or counties in which the municipalities in said water supply project are situated, of the work to be done and the materials to be furnished, particular plans and specifications of which shall, at the time of such order, be filed in the office of the commission.
All proposals shall be publicly opened by the commission, which shall award the contract to the lowest responsible and qualified bidder under the form of the contract originally adopted or the form of the alternative contract which shall then be adopted by it as most advantageous.
Each contractor shall be required to give bond satisfactory in amount and security to the commission for the faithful performance of his contract.
b. The Governor, in consultation with the Department of the Treasury, shall, no later than March 1 of each odd-numbered year, adjust the threshold amount set forth in subsection a. of this section, or subsequent to 1985 the threshold amount resulting from any adjustment under this subsection or section 17 of P.L. 1985, c. 469, in direct proportion to the rise or fall of the Consumer Price Index for all urban consumers in the New York City and the Philadelphia areas as reported by the United States Department of Labor. The Governor shall, no later than June 1 of each odd-numbered year, notify each commission of the adjustment. The adjustment shall become effective on July 1 of each odd-numbered year.
If the commission acquires any part or all of any distribution or water plant, it may convey the same to the municipality in which the same is situated or to whose use it is devoted, at the cost thereof as nearly as may be and upon such equitable terms as the commission may fix.
The cost of the construction or acquisition of said water supply shall be borne by the contracting municipalities in proportion to the amount of water contracted to be taken in the contract between each of the municipalities and the commission. The commission may call upon each of the contracting municipalities to pay from time to time an account of said costs such sums as the commission shall estimate to be needed for that purpose, and shall request payments from each of the municipalities in accordance with the contract until the total cost of the acquisition and construction of the water supply has been completed, and each municipality shall make such payments when so requested. Such cost shall include the salaries and expenses of the commission up to the time of the actual completion of the plant and the commencement of the actual supply of water therefrom.
After the actual completion of the plant and the commencement of the actual supply of water therefrom, the expenses of the commission and its agents and employees shall be charged to operation and properly proportioned as between the several water supply projects which may be operated by the commission.
After the plant is completed or acquired the cost of operation shall be estimated yearly in advance and apportioned among the municipalities respectively in proportion to the amounts of water contracted to be used by each, and each of the municipalities shall pay said sums to the commission in advance when requested.
At the end of each year the commission shall make an apportionment of the actual cost of the operation of the plant among the contracting municipalities upon the basis of the actual water consumed by each municipality, but such amount shall be in no event less than the quantity contracted for. In apportioning said cost, no municipality shall be charged with any item of interest or rental upon, or cost of operation of, any part of any water plant which is not used in supplying water to the municipality, but any municipality may contract to bear the proportionate cost of acquisition and operation of any water plant which may be devoted in whole or in part to the service of one or more municipalities. Each municipality shall be charged with the amounts so apportioned, and credited with the amount previously paid on account of the estimated operating expenses for such year.
Upon the completion of such water supply plant, works and appurtenances, the commission shall retain and have sole control and charge of the same, except such part thereof as it may convey to any one of the contracting municipalities as herein provided, in trust, however, for each of the contracting municipalities and such other municipalities as may be entitled to share in the water supply as provided in this chapter.
Any municipality desiring to take water from any plant constructed, acquired or operated, or which is in course of construction or acquisition, by any district water supply commission under the authority conferred by this chapter, may file a petition with the commission setting forth the amount of water that the municipality desires to take and the period at which it desires to commence such taking. The commission shall thereupon fix a time and place for a hearing of the application and give to each municipal corporation under contract with the commission in relation to said water supply at least thirty days' notice in writing mailed to the clerk or secretary of the board or body having charge of the water supply of the municipal corporation.
After such hearing, the commission, if the water supply under its control is adequate for the supply of the applying municipality, may contract with the municipality for the supply to it of water at such price as shall impose upon the municipality an equitable share of the cost of constructing, acquiring and operating such supply; or the commission may allow the municipality to become part owner of the water supply plant controlled by the commission, or such part thereof as is necessary for the supply of the municipality by means of a contract whereby the municipality shall agree to pay to the commission its proportionate share of the cost of acquisition, construction and operation of the plant. Any money so paid to the commission by the municipality shall be paid over to the municipalities which have heretofore contributed to the cost of the water supply plant, upon such terms and in such proportion as the contracting municipalities have heretofore mutually agreed or as they shall hereafter mutually agree, and as shall be approved by the commission.
a. offer the customer the ability to receive or access, in electronic format, any periodic bill for service sent by such district water supply commission to its customers and any additional information sent by the water commission to its customers as required by law, provided that any notice of disconnection, discontinuance or termination of water service shall be sent to a customer in written form at the customer's legal mailing address in addition to being sent or being made available in electronic format; and
b. provide the customer of such district water supply commission the option of paying any such periodic bill via electronic means.
No municipality within a water supply district for which a commission has been appointed as provided in this chapter shall, without the consent of the commission, obtain any new or additional water supply from any watershed, other than the watershed or watersheds from which the municipality obtains its existing supply.
Each municipality entering into a contract with a district water supply commission as provided in this chapter may borrow upon its bonds, or upon its notes or other temporary obligations, the money necessary to make the payments required by such contract. Such bonds or other obligations shall be issued under and in accordance with article 1 of chapter 1 of the title Municipalities and Counties (s. 40:1-1 et seq.).
Nothing in this chapter contained shall be construed to authorize any district water supply commission to incur any indebtedness on behalf of the state of New Jersey.
All acts and parts of acts passed prior to March sixteenth, one thousand nine hundred and sixteen, granting to the state water supply commission or its successors in authority the powers in this chapter granted to the boards of district water supply commissions, when created as herein provided, are hereby repealed, but nothing in this repealer contained shall be held to affect the powers of any municipality, by condemnation or otherwise, to develop, acquire, operate, enlarge or improve its water supply existing on March sixteenth, one thousand nine hundred and sixteen, from its then source of supply, nor the performance of any then existing contract relating to its water supply.
This act shall be known as and may be cited as the "water transmission facilities act."
The Legislature hereby finds that:
(a) the State has heretofore acquired certain real property for the purpose of providing additional supplies of water which will be needed to meet the future requirements of the people of the State;
(b) the State through the Commissioner of Conservation and Economic Development is establishing reservoirs and water supplies on real property acquired for said purpose pursuant to the New Jersey Water Supply Law of 1958; and
(c) many millions gallons per day of water will soon become available from said reservoirs.
It is hereby declared to be in the public interest and to be the policy of the State to foster and promote by all reasonable means the prompt, efficient and economical transmission, treatment, filtration, distribution and use of the water supplies acquired and developed by the State. It is the purpose and object of this act further to implement such policy by, among other things, giving additional powers to certain public corporations heretofore authorized to supply and distribute water, to the end that such public corporations will be enabled to finance, construct and operate facilities necessary for the treatment, filtration, transmission and distribution of water made available by the State to municipalities and persons, pursuant to the provisions of the Water Supply Law.
As used in this act, the following words and terms shall have the following meanings, unless the context indicates another or different meaning or intent:
(1) "Bonds" means bonds or other obligations, including notes, issued pursuant to this act;
(2) "Commission" means (1) when used with reference to the North Jersey water supply district, or a water supply system or transmission facility in such district, the North Jersey district water supply commission heretofore appointed under section 3 of the original act as such commission may be constituted at any particular time; (2) when used with reference to the South Jersey water supply district, or a water supply system or transmission facility in such district, the commission described as the South Jersey district water supply commission in said section, and after the appointment thereof, such commission as it may be constituted at any particular time; (3) when used without particular reference to either water supply district, or without other words indicating a particular commission, both of said commissions;
(3) "Construct" and "construction" connote and include, in addition to the usual connotations thereof, acts of construction, reconstruction, replacement, extension, improvement and betterment of a water transmission facility;
(4) "Contracting municipality" means with reference to any particular project any municipality which shall enter into an agreement with a commission which provides among other things for periodic payments from said municipality to the commission for the purpose of paying all or part of the costs of financing the acquisition, construction, maintenance and operation of such project;
(5) "Cost" means, in addition to the usual connotations thereof, the cost incurred, or to be incurred, by the State or a commission, in planning, designing, constructing and putting fully in operation, all or any part of a water transmission facility, and of acquiring all or any real or personal property, or any agreements or franchises, necessary, useful or convenient therefor, or in connection therewith, and shall include without limiting the generality of the foregoing: the cost of engineering, architectural, legal, accounting and other professional surveys, studies, estimates, inspections, reports, plans, specifications and advice, including the repayment of any advances from the State or the United States, or any agency of either, or from any other source, for any of such purposes; financing charges and bond discount; interest, insurance, administrative and other operating expenses prior to, during and for 1 year after construction; operating deficits and other deficiencies in revenues; and all other expenses as may be necessary or incident to the financing, acquisition and construction of a water transmission facility and putting the same fully in operation;
(6) "Governing body" means the commission, council, board or body, by whatever name it may be known, having charge of the finances of a municipality;
(7) "Municipality" means any city of any class, any borough, village, town, township, or any other municipality (other than a county or a school district) any agency thereof or any 2 or more thereof acting jointly;
(8) "Operating expenses" means, in addition to the usual connotations thereof, all costs and expenses of operating, maintaining, managing, repairing and reconstructing a project and each and every part thereof including without limiting the generality of the foregoing: administrative expenses, premiums on insurance, including use and occupancy insurance and casualty, compensation and other insurance, costs of collection of any revenues, legal and engineering expenses, payments to pension, retirement, health and hospitalization funds, expenses, liabilities and compensation of fiduciaries, and any other expenses required to be paid for or with respect to proper operation or maintenance of such project all to the extent properly and directly attributable to such project, whether paid or incurred by the State or by the commission operating such project;
(9) "Original act" means chapter 5 of Title 58 of the Revised Statutes and the acts continued thereby and the acts heretofore adopted amendatory thereof and supplemental thereto;
(10) "Owner" means a person having any estate, interest or right in property being acquired under this act or any lien, charge or encumbrance thereon;
(11) "Participant" means any municipality which has accepted or which may hereafter accept a contract with a commission providing for the raising and payment of funds to meet the costs of acquisition and operation of a water supply or additional water supply pursuant to the terms of the original act;
(12) "Person" means any natural person, or any association, corporation, including any publicly or privately owned utility corporation, authority, county, municipality or the State and any agency or subdivision of any of them;
(13) "Project" means any water transmission facility, or any part of such a facility planned, acquired, constructed, or undertaken by a commission to carry out the purposes of this act;
(14) "Real property" means lands both within and without the State, and improvements thereof or thereon, any and all rights of way, water, riparian and other rights, any and all easements and privileges in real property, and any right or interest of any kind or description in, relating to or connected with real property;
(15) "Water supply system" or "supply system" means any water supply or additional water supply acquired or operated pursuant to the terms of the original act and all property of any kind used in connection therewith;
(16) "Water transmission facility" or "transmission facility" means any real property and rights therein, and any plants, structures, machinery and equipment and other property real, personal and mixed, acquired, constructed or operated, or to be acquired, constructed or operated for or in connection with the treatment, filtration, transmission or distribution by a commission of water made available by the State, including without limiting the generality of the foregoing, standpipes and other storage facilities, pumping stations, treatment plants, filtration plants, conduits, transmission mains, aqueducts, pipelines, mains, canals, open waterways and channels, connections and interconnections, roads and other plants, structures, machinery, tools, equipment, boats, conveyances, and other real and personal property, and rights therein, and any and all appurtenances necessary, useful, convenient or incidental to or in connection with the acquisition, construction, operation or maintenance of any of the foregoing;
(17) "Unused water" means with reference to any particular project any water allocated to but not presently required by a contracting municipality in such project and which would remain unused unless disposed of by the commission as provided in this act;
(18) "Water supply law" means the act of the Legislature of the State of New Jersey entitled "An act concerning water supplies, providing for increased water supplies for public potable, industrial, irrigation and other purposes, prescribing the functions, powers and duties of the Department of Conservation and Economic Development in connection therewith, and supplementing Title 58 of the Revised Statutes" approved May 12, 1958, constituting chapter 34 of the laws of 1958 (c. 58:22-1 et seq.) as heretofore amended and supplemented.
The North Jersey district water supply commission shall continue to be, and the South Jersey district water supply commission when appointed shall be, a public body politic and corporate established as an instrumentality exercising public and essential governmental functions and to provide for the public health and welfare.
A commission shall have the power in its own name and on its own behalf, to acquire, hold, use and dispose of its revenues and other moneys and to provide for and secure the payment of any bonds or notes and the rights of the holders thereof and to carry out the purposes of this act, shall have the power in addition to all other powers granted to it by law:
(a) to own, maintain, repair, reconstruct, operate and use water transmission facilities and, to that end, to acquire, by purchase, gift, condemnation or otherwise, and, to construct, maintain, repair, reconstruct, operate and use all plants, structures, equipment and other real and personal property, deemed necessary for, or incident to, any such facilities; and for said purposes may enter into any contracts or agreements, execute all instruments, and do all things necessary or convenient to carry out any power given in this act; provided, however, that a commission shall not have the power to condemn any waterworks, reservoir, transmission facility, water supply system, pipeline or any appurtenances thereto owned by a municipality or by a municipal or intermunicipal authority or commission;
(b) to enter into contracts pursuant to and in accordance with the provisions of the water supply law with the State to be executed on behalf of the State by the Commissioner of Conservation and Economic Development for the purchase of water from the State and determining the terms and conditions of such purchase; and
(c) to enter into contracts with any municipality or person for the sale or exchange of water and determining the terms and conditions of such sale or exchange.
Subject to the provisions of the water supply law, but notwithstanding the provisions of any other law, a commission and any municipality or municipalities may enter into a contract or contracts providing for or relating to: the treatment, filtration, transmission or distribution of any supply of water made available by the State including the formulation of plans for a project, the necessary engineering, financial and other studies and investigations of the feasibility of such project and the method of payment of the costs of such studies and investigations; the acquisition and construction of a project and the financing of the costs thereof and of any additions, extensions and improvements thereof and the terms and conditions upon which such acquisition, construction and financing shall be undertaken; and the operation and maintenance of a project, the treatment, filtration, or transmission of water, and the apportionment and distribution of water among and to the municipalities participating in a project, and the payments to be made to the commission by the municipalities to meet the cost of purchase of water, operating and maintenance expenses and debt service including any payments into reserve or other funds for the security of bondholders and to meet or discharge other obligations to bondholders. Any such contract may provide for the payment to the commission by a municipality annually or at more frequent intervals of such sum or sums of money, computed at fixed amounts or by formula based on any pertinent factors or other matters or in any other manner as said contract may provide. Any such contract may be authorized on behalf of the municipality by ordinance and may be made with or without consideration and for a specified or an unlimited time and on any terms and conditions which may be approved by such municipality and which may be agreed to by the commission in conformity with its contracts with the holders of any bonds, and shall be valid whether or not an appropriation with respect thereto is made by such municipality prior to authorization or execution thereof. Such municipality is hereby authorized and directed to do and perform any and all acts or things necessary, convenient or desirable to carry out and perform every such contract and to provide for the payment or discharge of any obligation thereunder in the same manner as other obligations of such municipality. Subject to any such contracts with the holders of bonds, the commission is hereby authorized to do and perform any and all acts or things necessary, convenient or desirable to carry out and perform every such contract.
Any municipality shall have power, in the discretion of its governing body, to appropriate moneys for the purposes of the commission, and to pay, lend or donate such moneys to the commission in such installments and upon such terms as may be agreed upon between such municipality and the commission.
No trustee or receiver appointed under this act, and no holder of any bond or coupon or other obligation issued pursuant to this act, no contracting municipality or person having any right or interest in any project acquired or constructed under this act and no creditor or other claimant whose claim arises out of or in connection with the acquisition, construction, operation or ownership of any project by a commission under or pursuant to this act, shall acquire or have any rights whatsoever against any part of any water supply or water supply system acquired or operated by a commission for and on behalf of one or more participants pursuant to the provisions of the original act or any agreements thereunder. No moneys or other property received by a commission for payment of the costs of acquiring, constructing, maintaining or operating a particular water supply system shall be used for or in connection with any other water supply system or project.
(a) A commission shall cause to be prepared, not later than December 31 of each year, a separate annual budget for the operating expenses of each water supply system and water transmission facility which it may operate pursuant to the original act or to the provisions of this act. The commission shall thereupon fix a time and place for a hearing on each of the said budgets. Notice of each hearing, together with a copy of each of the said budgets, shall be sent to the participants and contracting municipalities of all water supply systems and water transmission facilities administrated by or under the control of such commission at least 10 days before the date fixed for the hearing by mailing a copy of the same to the officer of the board or body having charge of the water supply of said municipality. The commission shall approve the budget not later than 15 days after the beginning of the municipal budget year. Copies thereof shall be filed with the respective municipal officials within 5 days after approval.
(b)1. The operating expenses of a water supply system operated by a commission pursuant to the original act shall be estimated in advance each year and be apportioned among participants in proportion to the amounts of water contracted to be used by each. Payment shall be made to the commission in advance upon request.
(c) Notwithstanding any other provision of this act, a commission may apportion to and among participants and contracting municipalities as part of the operating expenses of a project or water supply system in which they have an interest a portion of the commission's general expenses not wholly or directly attributable to the operation or maintenance of any particular project or water supply system. Such allocation shall be fair and equitable taking into account the amounts of direct cost of operating and maintaining, or the volume of water supplied or allocated by or to, particular projects and water supply systems and such other factors as may reasonably be considered for the purpose of such apportionment. Except as provided in this section, a commission shall not use any moneys received by it for use in connection with a particular water supply system or project to pay any costs or expenses incurred by it in connection with any other water supply system or project.
(a) A commission shall have power to sell any unused water to any municipality or person for the account of any contracting municipality or municipalities having the right to use such water (herein called "interested municipality" ). Any such sale shall be subject however to the prior right of the interested municipality to use such water;
(b) Any such sale shall be made by an agreement in writing on such terms and for such periods as the commission shall determine, but not at a price lower than the cost of the water to the interested municipality unless such municipality shall consent thereto;
(c) No sale of unused water shall be made to any consumer without the consent of the municipality in which such water will be used, but such consent shall not unreasonably be withheld;
(d) No person and no municipality which is not a contracting municipality in a project shall have any right to require a commission to sell nor have any right to purchase any unused water available as a result of such project unless and until a party to a sale agreement and then only to the extent and upon the terms set forth therein.
After all bonds issued by a commission to finance the acquisition of a project, and all obligations to the holders of any such bonds, have been fully met and discharged, the commission shall retain and have sole control and charge of such project, in trust however, for the contracting municipalities in the same manner and to the same extent as if the project were a water supply or water supply system acquired and constructed under the original act.
For the purpose of raising funds to pay the cost of any part of any project or for the purpose of funding or refunding any bonds, including refunding by exchange of bonds for outstanding bonds, a commission shall have power to authorize or provide for the issuance of bonds pursuant to this act. Such commission shall adopt a resolution (in this act sometimes referred to as "bond resolution" ) which shall
(1) describe in brief and general terms sufficient for reasonable identification the project or part thereof to be constructed or acquired, or describe the bonds which are to be funded or refunded (if any);
(2) state the cost or estimated cost of the project (if any); and
(3) provide for the issuance of bonds in accordance with the provisions of this act.
No general bond resolution establishing an issuance of bonds of the commission shall become effective unless at least 10 days prior to its adoption the commission shall have given notice thereof to all participants and contracting municipalities having an interest in any water supply system or water transmission facility under the administration or control of the commission. Such notice shall specify the time and place at which such resolution will be considered by the commission for adoption and shall be served, together with a copy of the proposed resolution, either personally or by certified or registered mail upon the clerk of each such participant or contracting municipality.
Upon adoption of a bond resolution, a commission shall have power to incur indebtedness, borrow money and issue its bonds (including bonds to be exchanged for outstanding bonds) for the purpose of financing the project or of funding or refunding the bonds described therein. Such bonds shall be authorized by the bond resolution and may be issued in one or more series and shall bear such date or dates, mature at such time or times not exceeding 50 years from the date thereof, bear interest at such rate or rates not exceeding 6% per annum, be in such denomination or denominations, be in such form, either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable from such sources in such medium of payment at such place or places within or without the State, and be subject to such terms of redemption (with or without premium) as the bond resolution may provide.
Bonds of a commission may be sold by the commission at public or private sale at such price or prices as the commission shall determine; provided, however, that the interest cost to maturity of the money received for any issue of bonds (computed according to standard tables of bond values) shall not exceed 6% per annum.
A commission may cause a copy of any bond resolution adopted by it to be filed for public inspection in its office and in the office of the clerk of the governing body of the contracting municipality or municipalities and may thereupon cause to be published once in a newspaper or newspapers circulating in the contracting municipality or municipalities, a notice stating the fact and date of such adoption and the places where such bond resolution has been so filed for public inspection and also the date of the first publication of such notice and also that any action or proceeding of any kind or nature in any court questioning the validity of its creation and establishment of the commission or the validity or proper authorization of bonds provided for by the bond resolution, or the validity of any covenants, agreements or contract provided for by the bond resolution shall be commenced within 20 days after the publication of such notice. If any such notice shall at any time be published and if no action or proceeding questioning the validity of the creation and establishment of the commission, or the validity or proper authorization of bonds provided for by the bond resolution referred to in said notice, or the validity of any covenants, agreements or contract provided for by said bond resolution shall be commenced or instituted within 20 days after the first publication of said notice, then all residents and taxpayers and owners of property in any contracting municipality and all other persons whatsoever shall be forever barred and foreclosed from instituting or commencing any action or proceeding in any court, or from pleading any defense to any action or proceedings, questioning the validity of the creation and establishment of the commission, or the validity of proper authorization of such bonds, or the validity of any such covenants, agreements or contracts, and said commission shall be conclusively deemed to have been validly created and established and to be authorized to transact business and exercise powers as a commission under this act, and said bonds, covenants, agreements and contracts shall be conclusively deemed to be valid and binding obligations in accordance with their terms and tenor.
Any provision of any law to the contrary notwithstanding, any bond or other obligation issued pursuant to this act shall be fully negotiable within the meaning and for all purposes of the negotiable instruments law of the State, and each holder or owner of such a bond or obligation, or of any coupon appurtenant thereto, by accepting such bond or coupon shall be conclusively deemed to have agreed that such bond, obligation or coupon is and shall be fully negotiable within the meaning and for all purposes of said negotiable instruments law.
Any bond resolution of a commission providing for or authorizing the issuance of any bonds may contain provisions, and such commission, in order to secure the payment of such bonds and in addition to its other powers, shall have power by provision in such bond resolution to covenant and agree with the several holders of such bonds, as to:
(1) the custody, security, use, expenditure or application of the proceeds of the bonds;
(2) the construction and completion, or replacement, of all or any part of a project;
(3) the use, regulation, operation, maintenance, insurance or disposition of all or any part of a project or restrictions on the exercise of the powers of the commission to dispose, or to limit or regulate the use, of all or any part of a project;
(4) payment of the principal of or interest on the bonds, or any other obligations, and the sources and methods thereof, the rank or priority of any such bonds or obligations as to any lien or security, or the acceleration of the maturity of any such bonds or obligations;
(5) the use and disposition of any moneys of the commission, including revenues (in this act sometimes called "project revenues") derived or to be derived from the operation of all or any part of a project, including any parts thereof theretofore constructed or acquired and any parts, extensions, replacements or improvements thereof thereafter constructed or acquired;
(6) pledging, setting aside, depositing or trusteeing all or any part of the facility revenues or other moneys of the commission to secure the payment of the principal of or interest on the bonds or any other obligations or the payment of expenses of operation or maintenance of a project, and the powers and duties of any trustee with regard thereto;
(7) the setting aside out of project revenues or other moneys of the commission of reserves and sinking funds, and the source, custody, security, regulation, application and disposition thereof;
(8) determination or definition of project revenues or of the expenses of operation and maintenance of a project;
(9) the rents, rates, fees, or other charges for connection with or the use or services of a project, including any parts thereof theretofore constructed or acquired and any parts, extensions, replacements or improvements thereof thereafter constructed or acquired, and the fixing, establishment, collection and enforcement of the same, the amount or amounts of project revenues to be produced thereby, and the disposition and application of the amounts charged or collected;
(10) the assumption or payment or discharge of any indebtedness, liens or other claims relating to any part of a project or any obligations having or which may have a lien on any part of the project revenues;
(11) limitations on the issuance of additional bonds or any other obligations or on the incurrence of indebtedness of the commission;
(12) limitations on the powers of the commission to construct, acquire or operate, or permit the construction, acquisition or operation of, any plants, structures, facilities or properties which may compete or tend to compete with a project;
(13) vesting in a trustee or trustees within or without the State such property, rights, powers and duties in trust as the commission may determine which may include any or all of the rights, powers and duties of the trustee appointed by the holders of bonds pursuant to section 19 of this act, and limiting or abrogating the right of such holders to appoint a trustee pursuant to section 19 of this act or limiting the rights, duties and powers of such trustee;
(14) payment of costs or expenses incident to the enforcement of the bonds or of the provisions of the bond resolution or of any covenant or contract with the holders of the bonds;
(15) the procedure, if any, by which the terms of any covenant or contract with, or duty to, the holders of bonds may be amended or abrogated, the amount of bonds the holders of which must consent thereto, and the manner in which such consent may be given or evidenced; or
(16) any other matter or course of conduct which, by recital in the bond resolution, is declared to further secure the payment of the principal of or interest on the bonds.
All such provisions of the bond resolution and all such covenants and agreements shall constitute valid and legally binding contracts between the commission and the several holders of the bonds, regardless of the time of issuance of such bonds, and shall be enforceable by any such holder or holders by appropriate action, suit or proceeding in any court of competent jurisdiction, or by proceeding in lieu of prerogative writ.
(1) If the bond resolution of a commission authorizing or providing for the issuance of a series of its bonds shall provide in substance that the holders of the bonds of such series shall be entitled to the benefits of this section, then in the event that there shall be a default in the payment of principal of or interest on any bonds of such series after the same shall become due, whether at maturity or upon call for redemption, and such default shall continue for a period of 30 days, or in the event that the commission shall fail or refuse to comply with the provisions of this act shall fail or refuse to carry out and perform the terms of any contract with the holders of any such bonds, and such failure or refusal shall continue for a period of 30 days after written notice to the commission of its existence and nature, the holders of 25% in aggregate principal amount of the bonds of such series then outstanding by instrument or instruments filed in the office of the Secretary of State and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of the bonds of such series for the purposes provided in this section.
(2) Such trustee may and upon written request of the holders of 25% in aggregate principal amount of the bonds of such series then outstanding shall, in his or its own name:
(a) By any action, writ, proceeding in lieu of prerogative writ, or other proceeding, enforce all rights of the holders of such bonds, including the right to require the commission to charge and collect service charges adequate to carry out any contract as to, or pledge of, project revenues, and to require the commission to carry out and perform the terms of any contract with the holders of such bonds or its duties under this act;
(b) Bring an action upon all or any part of such bonds or interest coupons or claims appurtenant thereto;
(c) By action, require the commission to account as if it were the trustee of an express trust for the holders of such bonds;
(d) By action, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such bonds; or
(e) Declare all such bonds due and payable, whether or not in advance of maturity, upon 30 days' prior notice in writing to the commission and, if all defaults shall be made good, then with the consent of the holders of 25% of the principal amount of such bonds then outstanding, annul such declaration and its consequences.
(3) Such trustee shall, in addition to the foregoing, have and possess all of the powers necessary or appropriate for the exercise of the functions specifically set forth herein or incident to the general representation of the holders of bonds of such series in the enforcement and protection of their rights.
(4) In any action or proceeding by such trustee, the fees, counsel fees and expenses of the trustee and of the receiver, if any, appointed pursuant to this act, shall constitute taxable costs and disbursements, and all costs and disbursements, allowed by the court, shall be a first charge upon any service charges and project revenues of the commission pledged for the payment or security of bonds of such series.
If the bond resolution of a commission authorizing or providing for the issuance of a series of its bonds shall provide in substance that the holders of the bonds of such series shall be entitled to the benefits of section 19 of this act and shall further provide in substance that any trustee appointed pursuant to said section or having the powers of such a trustee shall have the powers provided by this section, then such trustee, whether or not all of the bonds of such series shall have been declared due and payable, shall be entitled as of right to the appointment of a receiver of the project, the revenues of which are pledged for the payment or security of bonds of such series. Such receiver may enter upon and take possession of said project and, subject to any pledge or contract with the holders of such bonds, shall take possession of all moneys and other property derived from or applicable to the acquisition, construction, operation, maintenance or reconstruction of said project and proceed with such acquisition, construction, operation, maintenance or reconstruction which the commission is under any obligation to do, and operate, maintain and reconstruct the said project and fix, charge, collect, enforce and receive all revenues from said project thereafter arising subject to any pledge thereof or contract with the holders of such bonds relating thereto and perform the public duties and carry out the contracts and obligations of the commission in the same manner as the commission itself might do and under the direction of the court.
Neither the members of the commission nor any person executing bonds issued pursuant to this act shall be liable personally on the bonds by reason of the issuance thereof. Bonds or other obligations issued pursuant to this act shall not be in any way a debt or liability of the State, or of any municipality or municipalities and shall not create or constitute any indebtedness, liability or obligation of the State or of any such municipality, either legal, moral or otherwise, and nothing in this act contained shall be construed to authorize any commission to incur any indebtedness on behalf of or in any way to obligate the State or any municipality.
(1) In addition to the powers granted to it by the provisions of the original act, to acquire or use for its purposes land and other property, each commission is hereby empowered, in its own name but for the contracting municipality or municipalities, to acquire by purchase, gift, grant or devise and to take for public use real property, within the district, in fee simple absolute, or any interest therein which may be deemed by the commission necessary for its purposes. Each commission is hereby empowered, subject to the limitations specified in subsection (a) of section 6 of this act, to acquire and take such property including public property or interest therein, by condemnation, in the manner provided by chapter 1 of Title 20, Eminent Domain, of the Revised Statutes (R.S. 20:1-1 et seq.) and, to that end, may invoke and exercise in the manner or mode of procedure prescribed in said chapter in its own name all of the powers of a municipality to acquire or take property for public use.
(2) Upon the filing by a commission of a complaint in any action to fix the compensation to be paid for any property, or at any time thereafter, the commission may file with the clerk of the county in which such property is located and also with the Clerk of the Superior Court a declaration of taking, signed by the commission, declaring that possession of one or more of the tracts or parcels of land or property described in the complaint is thereby being taken by and for the use of the commission. The said declaration of taking shall be sufficient if it sets forth (a) a description of each tract or parcel of land or property to be so taken sufficient for the identification thereof to which there may or may not be attached a plan or map thereof, (b) a statement of the estate or interest in the said land or property being taken, (c) a statement of the sum of money estimated by the commission by resolution to be just compensation for the taking of the estate or interest in each tract or parcel of land or property described in said declaration, and (d) an allegation that, in compliance with the provisions of this act, the commission has established and is maintaining a trust fund as hereinafter provided.
(3) Upon the filing by a commission of a declaration of taking of property as provided in this act, the commission shall deposit with the Clerk of the Superior Court the amount of the estimated compensation stated in said declaration. In addition to the said deposits with the Clerk of the Superior Court, the commission at all times shall maintain a fund on deposit with a bank or trust company doing business in the State in an amount at least equal to 25% of the aggregate amount deposited with the Clerk of the Superior Court as estimated compensation for all property described in declarations of taking with respect to which the compensation has not been finally determined and paid to the persons entitled thereto or into court. Said fund shall consist of cash or securities readily convertible into cash constituting legal investments for trust funds under the laws of the State or may consist of all or some part of the proceeds of bonds of the commission held by any trustee for the holders of such bonds and available for payment for the land or other property described in such declarations of taking. Said fund shall be held by or on behalf of the commission to secure and may be applied to the payment of just compensation for the land or other property described in such declarations of taking. The commission shall be entitled to withdraw from said fund from time to time so much as may then be in excess of the aggregate amount deposited with the Clerk of the Superior Court as estimated compensation for all land or other property described in declarations of taking with respect to which the compensation has not been finally determined and paid to the persons entitled thereto or into court.
(4) Upon the filing by a commission of a declaration of taking of property as provided in this act and the depositing with the Clerk of the Superior Court of the amount of the estimated compensation stated in said declaration, the commission, without other process or proceedings, shall be entitled to the exclusive possession and use of each tract of land or property described in said declaration and may forthwith enter into and take possession of said land or property, it being the intent of this provision that the action to fix compensation to be paid or any other proceedings relating to the taking of said land or interest therein or other property shall not delay the taking of possession thereof and the use thereof by the commission for the purpose or purposes for which the commission is authorized by law to acquire or condemn such land or other property or interest therein.
(5) Each commission shall cause notice of the filing of a declaration of taking of property as provided in this act and of the making of the deposit required by this act with respect thereto to be served upon each party to the action to fix the compensation to be paid who resides in the State, either personally or by leaving a copy thereof at his residence if known, and upon each such party who resides out of the State, by mailing a copy thereof to him at his residence if known. In the event that the residence of any such party or the name of such party is unknown, such notice shall be published at least once in a newspaper published or circulating in the county or counties in which the property is located. Such service, mailing or publication shall be made within 30 days' after filing such declaration.
(6) A commission shall not abandon any condemnation proceeding subsequent to the date upon which it has taken possession of the land or property as provided in this act.
Neither a commission nor any contracting municipality shall have power to mortgage, pledge, encumber or otherwise dispose of any part of a water transmission facility, except that a commission may dispose of such part or parts thereof as may be no longer necessary for the purposes of the commission. The provisions of this section shall be deemed to constitute a part of the contract with the holder of any bonds. All property of the commission shall be exempt from levy and sale by virtue of an execution and no execution or other judicial process shall issue against the same nor shall any judgment against the commission be a charge or lien upon its property; provided, however, that nothing herein contained shall apply to or limit the rights of the holder of any bonds to pursue any remedy for the enforcement of any pledge or lien given by the commission on its facility revenues or other moneys.
Notwithstanding any restriction contained in any other law, the State and all public officers, municipalities, counties, political subdivisions and public bodies, and agencies thereof, all banks, bankers, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, and all executors, administrators, guardians, trustees and other fiduciaries, may legally invest any sinking funds, moneys or other funds belonging to them or within their control in any bonds of a commission and such bonds shall be authorized security for any and all public deposits.
All bonds of a commission are hereby declared to be issued by a political subdivision of this State and for an essential public and governmental purpose and to be bonds of a public instrumentality exercising public and essential governmental functions and such bonds, and the interest thereon and the income therefrom, and all funds, income, facility revenues and other moneys pledged or available to pay or secure the payment of such bonds, or interest thereon, shall at all times be exempt from taxation except for estate and transfer inheritance taxes and taxes on transfers by or in contemplation of death.
The State of New Jersey does hereby pledge to and covenant and agree with the holders of any bonds of a commission that the State will not limit or alter the rights hereby vested in the commission to acquire, construct, maintain, reconstruct and operate the project and to fulfill the terms of any agreement made with the holders of such bonds or other obligations, and will not in any way impair the rights or remedies of such holders, and will not modify in any way the exemptions from taxation provided for in this act, until the bonds, together with interest thereon, with interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceeding by or on behalf of such holders, are fully met and discharged.
This act shall be construed liberally to effectuate the legislative intent and purpose and as complete and independent authority for the performance of every act and thing herein authorized. The powers granted to and duties imposed upon a commission by this act are granted or imposed in addition to and not in substitution for existing powers or duties of a commission and of any municipality, and are not subject to any limitation or restriction prescribed in the original act or by any other law excepting only the water supply law. If there shall be any conflict between the terms or provisions of this act and the terms and provisions of the original act, the terms and provisions of this act shall govern, except that nothing contained herein shall be construed to alter the application of the terms and provisions of the original act to any water supply system or plant provided for thereunder, or to any water supply system or plant presently operating thereunder and the contracts entered into in connection therewith.
If any section, subsection, clause or provision of this act shall be adjudged unconstitutional or be ineffective in whole or in part, to the extent that it is not adjudged unconstitutional or is not ineffective it shall be valid and effective and no other section, subsection, clause or provision of this act shall on account thereof be deemed invalid or ineffective, and the inapplicability or invalidity of any section, subsection, clause or provision of this act in any one or more instances or under any one or more circumstances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance or under any other circumstance.
Any district water supply commission owning, operating, controlling and maintaining any watershed property, reservoir and water system within this State and the governing body of any municipality owning, operating, controlling and maintaining a watershed property exceeding three thousand acres in area and a reservoir and water system may, by resolution, appoint and establish a constabulary for the purpose of preserving order thereon and of protecting, regulating and controlling the same and its pumping stations, dams, pipelines, buildings, machinery and structures located thereon and of enforcing rules and regulations promulgated from time to time by said commission or by the governing body of said municipality for said purpose.
Said constabulary shall be organized into a police system to be known as the " Watershed Police," which shall be separate and distinct from any municipal, county or State police system. The commission or the governing body of such municipality, as the case may be, shall have sole control of the appointment, compensation, terms and duration of employment and management of the said constabulary, for the securing of proper discipline and efficiency among the members thereof; provided, however, that in the case of any such municipality now or hereafter operating under the provisions of Title 11 of the Revised Statutes, Civil Service, all members of said constabulary shall be appointed in accordance with the provisions of said Title 11 of the Revised Statutes.
The commission or the governing body of such municipality, as the case may be, may make, alter, amend and repeal rules and regulations for the protection, regulation and control of its watershed properties, reservoirs, pumping stations, dams, pipelines, buildings, machinery and structures, and all other properties and things contained therein, and may prescribe penalties for the violations of such rules and regulations, either by imprisonment in a county jail or in any place provided by a municipality for the detention of prisoners, for any term not exceeding ninety days, or by a fine not exceeding two hundred dollars ($200.00), or both. The proposed rules and regulations shall first be approved by the Department of Law and Public Safety of the State of New Jersey, and in the case of a municipality, by the district water supply commission, if any, of the water supply district within which said watershed properties are situated, as well, and, when so approved, they shall be advertised once a week for two weeks in at least two newspapers circulating in the county or counties in which said rules and regulations are to apply and shall not be adopted until a public hearing shall have first been held. Such rules and regulations shall not take effect until ten days after their adoption and after their publication once a week for two weeks in at least two newspapers circulating in the county or counties in which said rules and regulations are to apply.
The members and officers of the said constabulary may make service of summons or any other legal process, and may arrest on view and without warrant and conduct before the nearest magistrate of the municipality in which the arrest is made, or of a neighboring municipality, or any judge having jurisdiction to impose fines and penalties generally in said municipalities, any person found violating the rules and regulations so enacted and promulgated and in addition they shall have all the powers conferred by law on police officers or constables for the enforcement of the laws of this State in the municipalities in which the watershed properties, reservoirs, pumping stations, dams, pipelines, buildings, machinery and structures are located and the apprehension of violators thereof.
Any member or officer of any constabulary created hereunder may, at the option of the commission or the governing body of such municipality so creating the same, be temporarily assigned to or deputized by the State Commissioner of Health or any local board of health for the purpose of enforcing any anti-pollution law and preventing pollution of waters upon the watersheds and feeder streams supplying the reservoir and water system of such commission or municipality, as well as for the purpose of procuring evidence in the prosecution of any such violators.
This act shall be known and may be cited as the "Spill Compensation and Control Act."
The Legislature further finds and declares that many former industrial sites in the State remain vacant or underutilized in part because they have been contaminated by a discharge of a hazardous substance; that these properties constitute an economic drain on the State and the municipalities in which they exist; that it is in the public interest to have these properties cleaned up sufficiently so that they can be safely returned to productive use; and that it should be a function of the Department of Environmental Protection to facilitate and coordinate activities and functions designed to clean up contaminated sites in this State.
"Act of God" means an act exclusively occasioned by an unanticipated, grave natural disaster without the interference of any human agency;
"Administrator" means the chief executive of the New Jersey Spill Compensation Fund;
"Barrel" means 42 United States gallons or 159.09 liters or an appropriate equivalent measure set by the director for hazardous substances which are other than fluid or which are not commonly measured by the barrel;
"Board" means a board of arbitration convened by the administrator to settle disputed disbursements from the fund;
"Cleanup and removal costs" means all direct costs associated with a discharge, and those indirect costs that may be imposed by the department pursuant to section 1 of P.L.2002, c.37 associated with a discharge, incurred by the State or its political subdivisions or their agents or any person with written approval from the department in the: (1) removal or attempted removal of hazardous substances, or (2) taking of reasonable measures to prevent or mitigate damage to the public health, safety, or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources, and shall include costs incurred by the State for the indemnification and legal defense of contractors pursuant to sections 1 through 11 of P.L.1991, c.373 (C.58:10-23.11f8 et seq.);
"Commissioner" means the Commissioner of Environmental Protection;
"Contamination" or "contaminant" means any discharged hazardous substance, hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3);
"Department" means the Department of Environmental Protection;
"Director" means the Director of the Division of Taxation in the Department of the Treasury;
"Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State;
"Emergency response action" means those activities conducted by a local unit to clean up, remove, prevent, contain, or mitigate a discharge that poses an immediate threat to the environment or to the public health, safety, or welfare;
"Fair market value" means the invoice price of the hazardous substances transferred, including transportation charges; but where no price is so fixed, "fair market value" shall mean the market price as of the close of the nearest day to the transfer, paid for similar hazardous substances, as shall be determined by the taxpayer pursuant to rules of the director;
"Final remediation document" means a no further action letter issued by the department pursuant to P.L.1993, c.139 (C.58:10B-1 et al.), or a response action outcome issued by a licensed site remediation professional pursuant to section 14 of P.L.2009, c.60 (C.58:10C-14);
"Fund" means the New Jersey Spill Compensation Fund;
"Hazardous substances" means the "environmental hazardous substances" on the environmental hazardous substance list adopted by the department pursuant to section 4 of P.L.1983, c.315 (C.34:5A-4); such elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 311 of the Federal Water Pollution Control Act Amendments of 1972, Pub.L.92-500, as amended by the Clean Water Act of 1977, Pub.L.95-217 (33 U.S.C.s.1251 et seq.); the list of toxic pollutants designated by Congress or the United States Environmental Protection Agency pursuant to section 307 of that act; and the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 101 of the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," Pub.L.96-510 (42 U.S.C.s.9601 et seq.); provided, however, that sewage and sewage sludge shall not be considered as hazardous substances for the purposes of P.L.1976, c.141 (C.58:10-23.11 et seq.);
"Licensed site remediation professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12);
"Local unit" means any county or municipality, or any agency or other instrumentality thereof, or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad;
"Major facility" includes, but is not limited to, any refinery, storage or transfer terminal, pipeline, deep-water port, drilling platform or any appurtenance related to any of the preceding that is used or is capable of being used to refine, produce, store, handle, transfer, process or transport hazardous substances. "Major facility" shall include a vessel only when that vessel is engaged in a transfer of hazardous substances between it and another vessel, and in any event shall not include a vessel used solely for activities directly related to recovering, containing, cleaning up or removing discharges of petroleum in the surface waters of the State, including training, research, and other activities directly related to spill response.
A facility shall not be considered a major facility for the purpose of P.L.1976, c.141 unless it has total combined aboveground or buried storage capacity of:
(1) 20,000 gallons or more for hazardous substances which are other than petroleum or petroleum products, or
(2) 200,000 gallons or more for hazardous substances of all kinds.
In determining whether a facility is a major facility for the purposes of P.L.1976, c.141 (C.58:10-23.11 et seq.), any underground storage tank at the facility used solely to store heating oil for on-site consumption shall not be considered when determining the combined storage capacity of the facility.
For the purposes of this definition, "storage capacity" shall mean only that total combined capacity which is dedicated to, used for or intended to be used for storage of hazardous substances of all kinds. Where appropriate to the nature of the facility, storage capacity may be determined by the intended or actual use of open land or unenclosed space as well as by the capacities of tanks or other enclosed storage spaces;
"Natural resources" means all land, fish, shellfish, wildlife, biota, air, waters and other such resources owned, managed, held in trust or otherwise controlled by the State;
"Owner" or "operator" means, with respect to a vessel, any person owning, operating or chartering by demise such vessel; with respect to any major facility, any person owning such facility, or operating it by lease, contract or other form of agreement; with respect to abandoned or derelict major facilities, the person who owned or operated such facility immediately prior to such abandonment, or the owner at the time of discharge;
"Person" means public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, individuals, the United States, the State of New Jersey and any of its political subdivisions or agents;
"Person responsible for conducting the remediation" means (1) any person who executes or is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or operator of an industrial establishment subject to P.L.1983, c.330 (C.13:1K-6 et al.), for the remediation of a discharge, (3) the owner or operator of an underground storage tank subject to P.L.1986, c.102 (C.58:10A-21 et seq.), for the remediation of a discharge, (4) any other person who discharges a hazardous substance or is in any way responsible for a hazardous substance, pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated site, or (5) any other person who is remediating a site;
"Petroleum" or "petroleum products" means oil or petroleum of any kind and in any form, including, but not limited to, oil, petroleum, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, and substances or additives to be utilized in the refining or blending of crude petroleum or petroleum stock in this State; however, any compound designated by specific chemical name on the list of hazardous substances adopted by the department pursuant to this section shall not be considered petroleum or a petroleum product for the purposes of P.L.1976, c.141, unless such compound is to be utilized in the refining or blending of crude petroleum or petroleum stock in this State;
"Preliminary assessment" means the first phase in the process of identifying areas of concern and determining whether contaminants are or were present at a site or have migrated or are migrating from a site, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any contaminant is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of the public records;
"Remedial action" means those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the applicable health risk or environmental standards;
"Remedial investigation" means a process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site and the problems presented by a discharge, and may include data collected, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions if necessary;
"Remediation" or "remediate" means all actions to investigate, clean up, or respond to any known, suspected, or threatened discharge, including the preliminary assessment, site investigation, remedial investigation, and remedial action, or any portion thereof, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources;
"Response action outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained;
"Site investigation" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment;
"Taxpayer" means the owner or operator of a major facility subject to the tax provisions of P.L.1976, c.141;
"Tax period" means every calendar month on the basis of which the taxpayer is required to report under P.L.1976, c.141;
"Transfer" means onloading or offloading between major facilities and vessels, or vessels and major facilities, and from vessel to vessel or major facility to major facility, except for fueling or refueling operations and except that with regard to the movement of hazardous substances other than petroleum, it shall also include any onloading of or offloading from a major facility;
"Vessel" means every description of watercraft or other contrivance that is practically capable of being used as a means of commercial transportation of hazardous substances upon the water, whether or not self-propelled;
"Waters" means the ocean and its estuaries to the seaward limit of the State's jurisdiction, all springs, streams and bodies of surface or groundwater, whether natural or artificial, within the boundaries of this State.
As used in this act:
"Major facility" has the same meaning as set forth in section 3 of P.L.1976, c.141 (C.58:10-23.11b);
"Transmission pipeline" means new and existing pipe and any equipment, facility, rights-of-way, or building used or intended for use in the transportation of a hazardous substance by a pipeline and having a throughput capacity as established by regulations adopted by the department. Transmission pipeline does not include the transportation of a hazardous substance through onshore production or flow lines, refining, or manufacturing facilities, or storage terminals or inplant piping systems associated with those facilities that are within the boundaries of a major facility.
a. Each owner or operator of a major facility or a transmission pipeline shall submit to the Department of Environmental Protection a discharge prevention, control, and countermeasure (DPCC) plan reviewed and certified by a professional engineer licensed pursuant to P.L.1938, c.342 (C.45:8-27 et seq.) who shall attest that the plan complies with all applicable departmental requirements and has been prepared in accordance with sound engineering practices.
b. The DPCC plan shall contain the following information:
(1) The name of the major facility or transmission pipeline;
(2) The name and address of the owner or operator of the major facility or transmission pipeline;
(3) The location of the major facility or transmission pipeline;
(4) A description of the major facility or transmission pipeline and a general site plan and maps showing, as applicable, the locations of all below-ground or above-ground structures in which hazardous substances are stored, handled, used, or transported, including off-site transmission pipelines from a major facility and respective pipeline terminuses in- or out-of-State, along with flow diagrams of major facility or transmission pipeline operations;
(5) The number of barrels or other storage capacity of the major facility, or, in the case of transmission pipelines, the transportation capacity of these pipelines, the type and amount of hazardous substances transferred, refined, processed, or stored at the major facility or transmission pipeline, and the average daily throughput of the major facility or transmission pipeline;
(6) Topographical and other maps of the major facility's or transmission pipeline's site and off-site land and water areas in proximity to the major facility or transmission pipeline that could be adversely affected by a discharge or other emergency. The maps shall identify and delineate residential and other land use areas, as well as all environmentally sensitive areas, and identify the nature of the threats from a discharge thereto;
(7) Drainage and diversion plans of the major facility or transmission pipeline, including the location of all major sewers, storm sewers, catchment or containment systems or basins, diversion systems, and all watercourses into which surface water run-off from the major facility or transmission pipeline drains, which drainage and diversion plans shall be designed, where applicable, to prevent hazardous substances, including nonpoint source pollutants, from draining off-site or into ground or surface waters of the State;
(8) A discharge prevention plan and policy statement that identifies (a) leak detection and discharge prevention safety systems, devices, equipment, procedures, or other measures established for the major facility or transmission pipeline to prevent an unauthorized discharge, (b) the schedules, methods, and procedures for testing, maintaining, and inspecting above-ground and below-ground storage tanks, pipelines, and other structures, and leak detection and other preventive or safety systems, devices, or equipment and (c) the qualifications of personnel specifically charged with implementing the DPCC plan and policy, and the authority delegated thereto;
(9) A summary of the nature, scope, and frequency of discharge prevention and emergency response training programs and requirements for major facility or transmission pipeline personnel;
(10) Any other information deemed necessary or useful by the department.
The department may determine the manner and form in which the above information is to be provided, including the form and technology to be used in complying with the mapping requirements of this subsection.
a. Each owner or operator of a major facility or transmission pipeline shall submit to the Department of Environmental Protection a discharge response, cleanup, and removal contingency plan, attested to by the owner or operator, who shall certify the maximum emergency response capability at the major facility or transmission pipeline, that the trained personnel and response equipment as specified in the contingency plan are available or are at the disposal for the major facility or transmission pipeline, that the equipment is in good repair, and that the contingency plan is consistent with applicable local, regional, and State emergency response plans.
b. The contingency plan shall contain the following information:
(1) A summary and detailed description of the major facility's or transmission pipeline's action plan used by a major facility's or transmission pipeline's personnel and discharge cleanup contractors, as applicable, in responding to, and minimizing health and environmental dangers from, fires, explosions, or unauthorized discharges or releases of hazardous substances to the air, soil, or waters of the State, including the deployment of personnel and equipment in the event of a discharge or other emergency, and the chain of command for an emergency response action. The action plan shall provide for simulated emergency response drills, to be conducted at least once a year, to determine the currency and adequacy of, and personnel familiarity with, the emergency response action plan;
(2) An identification of all personnel and equipment available for cleanup and response activities, including all equipment and personnel located off-site that are either under the direct control of the owner or operator of the major facility or transmission pipeline, or that are available, by contract, to the major facility or transmission pipeline in the event of discharge or other emergency, and the amount of time that would be required to mobilize and deploy all response personnel and equipment. A copy of all current contracts or agreements between the owner or operator of a major facility or transmission pipeline and a discharge cleanup organization for emergency response service, including containment, cleanup, removal and disposal, shall be maintained at the facility, or in the case of a transmission pipeline, with a registered agent of the owner or operator or the transmission pipeline. Upon request the contracts or agreements shall be made available to the department;
(3) The names, home addresses, and qualifications of major facility or transmission pipeline emergency response coordinators, and alternates, and identification and qualifications of the other emergency response personnel trained and required to respond to a discharge or other emergency, and to operate containment, cleanup, and removal equipment. The contingency plan shall specify the authority and responsibilities of the coordinator or alternate in the event of a discharge or other emergency. A qualified coordinator or alternate shall be present at all times at a major facility;
(4) A plan identifying priorities for the off-site deployment of personnel and equipment to protect residential, environmentally sensitive, or other areas against a discharge or other emergency based on use, seasonal sensitivity, or other relevant factors;
(5) An environmentally sensitive areas and habitats protection plan, reviewed and certified by a marine biologist and an ornothologist, that shall (a) identify all environmentally sensitive areas and wildlife habitats that could be affected by a discharge from the major facility or transmission pipeline, (b) identify the seasonal sensitivity of the areas or habitats, (c) in the event of a discharge, provide for the protection from, and mitigation of, any potentially adverse impact of the discharge on the identified areas or habitats, and (d) provide for an environmental assessment of the impact of any discharge on the identified areas and habitats, including the effects on the habitat's flora, fauna or organisms. The environmentally sensitive areas and habitats protection plan shall, using criteria established by the department for identifying environmentally sensitive areas or habitats, identify any environmentally sensitive area or habitat that could be adversely affected by a discharge from a major facility or transmission pipeline;
(6) A copy of an agreement with the local emergency planning committee or committees that coordinate the emergency responses of the parties to the agreement;
(7) Any other information deemed necessary or useful by the department.
c. The department shall develop base maps, including but not limited to, waterways, wetlands, coastal areas, water supply areas, shellfish growing areas, and endangered and threatened species areas, to provide comprehensive, contiguous coverage of land and water areas.
Each DPCC plan and contingency plan shall be renewed every five years with the department unless the department requires a more frequent submission. Applications for plan renewals shall be accompanied by a summary of all unauthorized discharges at a major facility or transmission pipeline, and any other information as may be deemed necessary or useful by the department. Plan renewals may be limited to certifying that the existing plans on file with the department are current. Filing of a revised plan may be required by the department at the time of renewal so as to incorporate into the plan all amendments adopted since the filing of the original plan or its last renewal. Amendments to a DPCC plan, a contingency plan, or any other information required to be filed with the department pursuant to this act shall be filed within 30 days of the date of any modification of a facility or transmission pipeline necessitating a change in a plan or other information filed with the department. Plan renewals or amendments shall be certified in the same manner as the original plan.
The owner or operator of a major facility or transmission pipeline shall, at all times, retain on file with the department evidence of financial responsibility for cleaning up and removing a discharge or release of a hazardous substance, and for the removal of any abandoned structure owned or operated, as the case may be, by the owner or operator of a major facility or transmission pipeline. The amount, nature, terms, and conditions of the financial responsibility shall be determined by the department. The owner or operator of a major facility or transmission pipeline shall file evidence of financial responsibility with the department within 180 days of the effective date of P.L.1990, c.78 (C.58:10-23.11d1 et al.).
The department shall prescribe, by regulation, the manner, form and contents of the plans, renewals, amendments, and other submissions required to be filed pursuant to P.L.1990, c.78 (C.58:10-23.11d1 et al.) so as to ensure the consistency of plans, specifications, maps or other submissions filed with the department pursuant to this act as to form, content, clarity, geographical reference to State plan coordinates, or any other criteria deemed necessary by the department. The department shall prescribe by regulation the amount, nature, and conditions of financial responsibility of the owner or operator of a major facility or transmission pipeline as required pursuant to section 5 of P.L.1990, c.78 (C.58:10-23.11d5). The department shall establish, as applicable, minimum performance standards or requirements for any of the DPCC or contingency plan elements. Plans, plan renewals and amendments, plan components and any other required submissions to the department shall comply with departmental regulations, and, as applicable, shall be certified by a licensed engineer or land surveyor.
A copy of a DPCC plan and contingency plan, or plan renewal, and all plan amendments shall be filed by the owner or operator of a major facility or transmission pipeline with the local emergency prevention or local emergency planning committee or committees.
The owner or operator of a major facility or transmission pipeline who has on file with the department as of the date of adoption of rules or regulations pursuant to section 14 of P.L.1990, c.78 (C.58:10-23.11d14) a DPCC plan and a contingency plan reviewed and approved pursuant to section 5 of P.L.1976, c.141 (C.58:10-23.11d), or the owner or operator of a major facility or transmission pipeline who does not have on file with the department a DPCC plan and a contingency plan reviewed and approved by the department, shall file a new DPCC plan and a contingency plan in accordance with a schedule provided by the department and promulgated pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) so as to evenly distribute the submittal and filing of DPCC plans and contingency plans.
The department shall use the following criteria to evenly distribute the submittal and filing of DPCC plans and contingency plans: size of the facility, material being stored, and proximity to environmentally sensitive areas or habitats. The schedule adopted by the department for submitting a DPCC plan or a contingency plan shall not extend beyond three years after the adoption of the rules or regulations pursuant to section 14 of P.L.1990, c.78 (C.58:10-23.11d14).
a. Except as otherwise provided in subsection b. of this section, the department shall, as soon as practicable, but not later than six months following a filing of a DPCC plan, contingency plan, or a renewal thereof, or, in the case of plan amendments, within 60 days of the filing of the amendments, review the filing to determine compliance with all statutory requirements, including rules and regulations adopted thereunder.
b. The department may, at any time during the plan, plan renewal or plan amendment review period approve, conditionally approve, or disapprove a plan, plan renewal, or plan amendments. If a plan, plan renewal or plan amendments are disapproved, the owner or operator of the major facility or transmission pipeline shall have 30 days from receipt of written notice of the disapproval, and the reasons therefor, within which to submit a revised plan or plan amendments. The department may, at any time after an on-site inspection of a facility or pipeline, or a discharge or other emergency at a facility or pipeline, direct the owner or operator of the major facility or transmission pipeline to submit amendments to a DPCC plan or contingency plan on file with the department, or to submit additional documentation or information in conjunction with a filed plan or amendments. If within 30 days of receipt of a written request therefor, the owner or operator of the major facility or transmission pipeline fails to file a revised plan, amendments, or requested information satisfactory to the department, or fails to contest the department's request in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the DPCC plan, contingency plan, renewal plan, or plan amendments shall be deemed to have been disapproved by the department and the owner or operator of the facility or pipeline shall be in violation of section 2 or section 3, as appropriate, of P.L.1990, c.78 (C.58:10-23.11d2 or 58:10-23.11d3). The department may, for good cause, extend by up to an additional 30 days the time period for filing a revised plan or plan amendments, or for responding to a request for information.
a. The owner or operator of a major facility or transmission pipeline shall immediately report any unauthorized discharge occurring at the major facility or transmission pipeline. Within 30 days of the reporting of a discharge, the owner or operator of a major facility or transmission pipeline shall provide the department with a full report on the nature and causes of the discharge, the nature and chronology of the actions taken by the owner or operator and other parties to clean up and remove the discharged hazardous substance, an evaluation of all pertinent prevention and response plans and policies in light of the discharge, and the owner's or operator's response thereto, and the measures taken to avoid a recurrence of similar discharges and to remedy shortcomings in the prevention, detection, response, containment, cleanup, or removal plan components. The report shall be accompanied by any amendments that may be required to the DPCC and contingency plans. Upon evaluation of the report, the department may direct the owner or operator of the major facility or transmission pipeline to make appropriate amendments to its DPCC or contingency plan in order to prevent a recurrence of similar discharges, to improve the response capability at the major facility or transmission pipeline, or to minimize the possible adverse impacts of any future discharges on public safety and the environment. The owner or operator of the major facility or transmission pipeline shall provide the department with any other information that may be required by the department to evaluate the prevention and response capabilities at the major facility or transmission pipeline.
b. The owner or operator of a major facility or transmission pipeline shall immediately notify the department's environmental action line of any malfunction of a leak detection or other discharge monitoring system, or other discharge prevention, safety system, or device. The owner or operator of the major facility or transmission pipeline shall provide information as to the nature of the malfunction and the measures taken to avoid a recurrence. The department may, at any time, require the installation or replacement of a leak detection, discharge monitoring system, or other discharge prevention, safety system, or device because of severe or repeated malfunctions or other failures, or that fails to satisfy the standards prescribed therefor pursuant to section 11 of P.L.1990, c.78 (C.58:10-23.11d11).
Nothing in this section shall be construed to limit the authority of the department to direct the owner or operator of a facility or pipeline at any time to take immediate measures to strengthen its prevention or response capabilities.
a. On or after the effective date of this act, any new, or substantial modification or replacement of an existing, above-ground storage tank or other above-ground enclosed storage space, or of an existing transmission pipeline, including appurtenant structures, or a leak detection or other monitoring system, and prevention or safety system or devices shall comply with construction or performance standards based upon best available technology, industry standards, or federal requirements, whichever may be more stringent, as may be prescribed by the department or required by law. Except in emergency situations as defined by the department, notice of a proposed new construction or installation, substantial modification or replacement of any structure, system, or device subject to the provisions of this subsection shall be provided to the department at least 60 days prior to the commencement of construction, installation, or modification. The department shall also adopt standards and requirements for retrofitting existing structures, systems, or devices subject to the provisions of this subsection in order to prevent, or to minimize the adverse impacts of, unauthorized discharges.
b. (1) The owner or operator of a major facility shall conduct, or cause to be conducted, a structural integrity test of above-ground storage tanks or other above-ground enclosed storage spaces storing hazardous substances, including connecting underground or above-ground pipelines.
(2) The owner or operator of a transmission pipeline shall conduct, or cause to be conducted, a structural integrity test of all parts of the pipeline, including all line pipe, valves, and other appurtenances connected to line pipe, or other facilities that store or transport hazardous substances associated with the pipeline.
The department shall prescribe the size of the tanks to be tested, where applicable, and the nature and frequency of the testing.
c. An above-ground storage tank or other enclosed storage space, and any transmission pipeline existing prior to and on the effective date of P.L.1990, c.78 (C.58:10-23.11d1 et al.), shall be tested in accordance with this subsection within two years of the adoption by the department of standards and regulations therefor. The sequence of testing of existing tanks, enclosed storage spaces, or transmission pipelines shall be determined by the age or suspected age of the structure, the proximity to potable water supplies, the discharge record of the structure for the preceding five years, and the date of the last structural integrity test performed on the structure. The test results and a summary of any remedial actions taken as a consequence thereof shall be submitted to the department within 30 days of completion.
d. Testing or inspection of leak detection or other monitoring systems, and preventive or safety systems or devices shall be conducted as frequently as may be required by the department.
e. In developing standards or testing procedures or other requirements pursuant to this section, the department shall consider applicable standards and procedures adopted or recommended by the United States Environmental Protection Agency, and the following organizations:
(1) American Petroleum Institute (API), 1220 L Street, N.W., Washington, D.C. 20005;
(2) American Society for Testing and Materials (ASTM), 1916 Race Street, Philadelphia, Pennsylvania 19103;
(3) National Association of Corrosion Engineers (NACE), P.O. Box 218340, Houston, Texas 77218;
(4) National Fire Protection Association (NFPA), Batterymarch Park, Quincy, Massachusetts 02269; and
(5) Underwriters Laboratories (UL), 333 Pfingston Road, Northbrook, Illinois 60062.
Standards or other requirements for transmission pipelines shall be at least as stringent as those established for pipeline facilities by the Secretary of the United States Department of Transportation pursuant to the "Hazardous Liquid Pipeline Safety Act of 1979," 49 U.S.C. s.2001 et seq.; except that transmission pipeline standards and requirements adopted pursuant to this section shall be consistent with applicable standards and requirements adopted pursuant to any other State law regulating transmission pipelines.
f. The Department of Community Affairs shall, within 60 days of the adoption of regulations by the department, adopt in the State Uniform Construction Code, all applicable rules and regulations adopted by the department pursuant to this section.
The owner or operator of a major facility or transmission pipeline shall visually inspect, or cause to be visually inspected, at least once each month, all above-ground pipelines, above-ground storage tanks, and above-ground enclosed storage spaces for leaks, structural and foundation weaknesses, or other maintenance needs.
The owner or operator of a major facility or transmission pipeline shall maintain at the major facility, or in the case of a transmission pipeline, with a registered agent of the owner or operator, for at least 10 years, records of any testing, inspection, maintenance, and repair of all structures, equipment, and detection or monitoring, prevention or safety devices related to discharge prevention and response, and shall make these records available for inspection by the department or appropriate local agencies upon request. Records of employee training and simulated drills for discharge prevention and emergency response shall also be retained and be available for inspection by the department or appropriate local agencies.
Within one year of the effective date of P.L.1990, c.78 (C.58:10-23.11d1 et al.), the department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to implement the provisions of P.L.1990, c.78 (C.58:10-23.11d1 et al.). Pending adoption of rules and regulations, the department may require a major facility or transmission pipeline to take such action to upgrade the discharge and prevention capabilities at the facility or pipeline as the department may deem appropriate.
Compliance with any standard or plan required to be submitted or adopted pursuant to P.L.1990, c.78 (C.58:10-23.11d1 et al.) shall not be deemed a defense in addition to the defenses enumerated in subsection d. of section 8 of P.L.1976, c.141 (C. 58:10-23.11g).
Eighteen months after the adoption of regulations pursuant to section 14 of P.L.1990, c.78 (C.58:10-23.11d14) the department shall prepare and submit to the Senate Environmental Quality Committee, the Assembly Energy and Environment Committee, or their successors, and to the library of the New Jersey Office of Legislative Services, a status report on the submittals of the DPCC and contingency plans required to be adopted pursuant to P.L.1990, c.78 (C.58:10-23.11d1 et al.). The status report shall contain, but need not be limited to, a copy of the schedule of DPCC and contingency plan submittals, the number of major facilities, the number of submittals received, and the submittal schedule for plans not yet received.
Any person who may be subject to liability for a discharge which occurred prior to or after the effective date of the act of which this act is amendatory shall immediately notify the department. Failure to so notify shall make persons liable to the penalty provisions of section 22 of this act.
Whenever an aircraft discharges fuel into the airspace over the land or waters of this State, the operator shall note the amount of fuel discharged, location in flight path of the discharge, wind speed and direction, and area likely to be affected by the discharge. The operator shall include this information in its report of a hazardous discharge to the department. Whenever the department receives notice of a discharge from an overhead aircraft, the department shall notify the governing body of each affected municipality of the discharge.
(2) (a) Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and the contribution defendant shall have only the defenses to liability available to parties pursuant to subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g). In resolving contribution claims, a court may allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution pursuant to any other statute or under common law.
(b) A person who has discharged a hazardous substance or is in any way responsible for the discharge of a hazardous substance who has resolved his liability to the State for cleanup and removal costs, including the payment of compensation for damage to, or the loss of, natural resources, or for the restoration of natural resources, and (i) has received a final remediation document, or (ii) has entered into an administrative or judicially approved settlement with the State, shall not be liable for claims for contribution regarding matters addressed in the settlement or the final remediation document, as the case may be. The settlement shall not release any other person from liability for cleanup and removal costs who is not a party to the settlement, but shall reduce the potential liability of any other discharger or person in any way responsible for a discharged hazardous substance at the site that is the subject of the final remediation document or the settlement by the amount of the final remediation document or the settlement.
(3) In an action for contribution taken pursuant to this subsection, a contribution plaintiff may file a claim with the court for treble damages. A contribution plaintiff may be granted an award of treble damages by the court from one or more contribution defendants only upon a finding by the court that: (a) the contribution defendant is a person who was named on or subject to a directive issued by the department, who failed or refused to comply with such a directive, and who is subject to contribution pursuant to this subsection; (b) the contribution plaintiff gave 30 days' notice to the contribution defendant of the plaintiff's intention to seek treble damages pursuant to this subsection and gave the contribution defendant an opportunity to participate in the cleanup; (c) the contribution defendant failed or refused to enter into a settlement agreement with the contribution plaintiff; and (d) the contribution plaintiff (i) on or after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), commenced remediation of the site and provided written notice to the department that the contribution plaintiff is remediating or has remediated the property pursuant to the provisions of section 30 of P.L.2009, c.60 (C.58:10B-1.3), or (ii) entered into an agreement with the department to remediate the site. Notwithstanding the foregoing requirements, any authorization to seek treble damages made by the department prior to the effective date of P.L.1997, c.278 (C.58:10B-1.1 et al.) shall remain in effect, provided that the department or the contribution plaintiff gave notice to the contribution defendant of the plaintiff's request to the department for authorization to seek treble damages.
A contribution defendant from whom treble damages is sought in a contribution action shall not be assessed treble damages by any court where the contribution defendant, for good cause shown, failed or refused to enter the settlement agreement with the contribution plaintiff or where principles of fundamental fairness will be violated. One third of an award of treble damages in a contribution action pursuant to this paragraph shall be paid to the department, which sum shall be deposited in the New Jersey Spill Compensation Fund. The other two thirds of the treble damages award shall be shared by the contribution plaintiffs in the proportion of the responsibility for the cost of the cleanup and removal that the contribution plaintiffs have agreed to with the department or in an amount as has been agreed to by those parties.
Cleanup and removal of hazardous substances and actions to minimize damage from discharges shall, to the greatest extent possible, be in accordance with the National Contingency Plan for cleanup and removal of oil and hazardous substances established pursuant to section 311(c)(2) of the Federal Water Pollution Control Act Amendments of 1972 (Pub.L.92-500, 33 U.S.C. s.1251 et seq.).
Whenever the department acts to clean up and remove a discharge or contracts to secure prospective cleanup and removal services, it is authorized to draw upon the money available in the fund. Such money shall be used to pay promptly for all cleanup and removal costs incurred by the department in cleaning up, in removing or in minimizing damage caused by such discharge. Nothing in this section is intended to preclude removal and cleanup operations by any person threatened by such discharges, provided such persons coordinate and obtain approval for such actions with ongoing State or federal operations. No action taken by any person to contain or clean up and remove a discharge shall be construed as an admission of liability for said discharge. No person who renders assistance in containing or cleaning up and removing a discharge shall be liable for any civil damages to third parties resulting solely from acts or omissions of such person in rendering such assistance, except for acts or omissions of gross negligence or willful misconduct. In the course of cleanup or removal operations, no person shall discharge any detergent into the waters of this State without prior authorization of the commissioner.
b. Notwithstanding any other provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), the department, subject to the approval of the administrator with regard to the availability of funds therefor, or a local unit as a part of an emergency response action and with the approval of the department, may clean up and remove or arrange for the cleanup and removal of any hazardous substance which:
(1) Has not been discharged from a grounded or disabled vessel, if the department determines that such cleanup and removal is necessary to prevent an imminent discharge of such hazardous substance; or
(2) Has not been discharged, if the department determines that such substance is not satisfactorily stored or contained and said substance possesses any one or more of the following characteristics:
(a) Explosiveness;
(b) High flammability;
(c) Radioactivity;
(d) Chemical properties which in combination with any discharged hazardous substance at the same storage facility would create a substantial risk of imminent damage to public health or safety or an imminent and severe damage to the environment;
(e) Is stored in a container from which its discharge is imminent as a result of contact with a hazardous substance which has already been discharged and such additional discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or
(f) High toxicity and is stored or being transported in a container or motor vehicle, truck, rail car or other mechanized conveyance from which its discharge is imminent as a result of the significant deterioration or the precarious location of the container, motor vehicle, truck, rail car or other mechanized conveyance, and such discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or
(3) Has been discharged prior to the effective date of P.L.1976, c.141.
c. If and to the extent that he determines that funds are available, the administrator shall approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance other than petroleum as authorized by subsection b. of this section; provided that in determining the availability of funds, the administrator shall not include as available funds revenues realized or to be realized from the tax on the transfer of petroleum, to the extent that such revenues result from a tax levied at a rate in excess of $0.01 per barrel, pursuant to subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), unless the administrator determines that the sum of claims paid by the fund on behalf of petroleum discharges or cleanup and removals plus pending reasonable claims against the fund on behalf of petroleum discharges or cleanup and removals is greater than 30% of the sum of all claims paid by the fund plus all pending reasonable claims against the fund.
d. The administrator may only approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance discharged prior to the effective date of P.L.1976, c.141, pursuant to subsection b. of this section, if, and to the extent that, he determines that adequate funds from another source are not or will not be available; and provided further, with regard to the cleanup and removal costs incurred for discharges which occurred prior to the effective date of P.L.1976, c.141, the administrator may not during any one-year period pay more than $18,000,000 in total or more than $3,000,000 for any discharge or related set or series of discharges.
e. Notwithstanding any other provisions of P.L.1976, c.141, the administrator, after considering, among any other relevant factors, the department's priorities for spending funds pursuant to P.L.1976, c.141, and within the limits of available funds, shall make payments for the restoration or replacement of, or connection to an alternative water supply for, any private residential well destroyed, contaminated, or impaired as a result of a discharge prior to the effective date of P.L.1976, c.141; provided, however, total payments for said purpose shall not exceed $500,000 for the period between the effective date of this subsection e. and January 1, 1983, and in any calendar year thereafter.
f. Any expenditures of cleanup and removal costs and related costs made by the State pursuant to this act shall constitute, in each instance, a debt of the discharger to the fund. The debt shall constitute a lien on all property owned by the discharger when a notice of lien, incorporating a description of the property of the discharger subject to the cleanup and removal and an identification of the amount of cleanup, removal and related costs expended by the State, is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment or order docket the name and address of the discharger and the amount of the lien as set forth in the notice of lien. Upon entry by the clerk, the lien, to the amount committed by the State for cleanup and removal, shall attach to the revenues and all real and personal property of the discharger, whether or not the discharger is insolvent.
The notice of lien filed pursuant to this subsection which affects the property of a discharger subject to the cleanup and removal of a discharge shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this notice of lien shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this notice of lien. The notice of lien filed pursuant to this subsection which affects any property of a discharger, other than the property subject to the cleanup and removal, shall have priority from the day of the filing of the notice of the lien over all other claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a notice of lien pursuant to this subsection.
g. In the event a vessel discharges a hazardous substance into the waters of the State, the cleanup and removal and related costs resulting from that discharge that constitute a maritime lien on the discharging vessel pursuant to 33 U.S.C. s.1321 or any other law, may be recovered by the Department of Environmental Protection in an action in rem brought in the district court of the United States. An impoundment of a vessel resulting from this action shall continue until:
(1) the claim against the owner or operator of the vessel for the cleanup and removal and related costs of the discharge is satisfied;
(2) the owner or operator of the vessel, or a representative of the owner or operator, provides evidence of financial responsibility as provided in section 2 of P.L.1991, c.58 (C.58:10-23.11g2) and satisfactorily guarantees that these costs will be paid; or
(3) the impoundment is otherwise vacated by a court order. The remedy provided in this subsection is in addition to any other remedy or enforcement power that the department may have under any other law.
Any action brought by the State pursuant to this subsection and any impoundment of a vessel resulting therefrom shall not subject the State to be in any way liable for a subsequent or continued discharge of a hazardous substance from that vessel.
An owner or operator of a refinery, storage, transfer terminal, or pipeline facility, or a vessel that transports a hazardous substance, shall provide during non-daylight hours illumination for any transfer of the hazardous substance between the facility and such vessel, or among two or more vessels. Illumination shall be provided at each transfer connection point in use, and for adjacent facility or vessel areas, and surrounding waters. The intensity and area of illumination shall be sufficient in the estimation of the department, to permit the visual detection of a discharge of a hazardous substance into the land or waters of the State. To the extent practicable and necessary to effectuate the purposes of this section, the department may require illumination of locations at which underwater transmission pipelines emerge onto the lands of the State.
The department shall, within one year of the effective date of this act, adopt guidelines for the implementation of its provisions. The guidelines shall, to the maximum extent practicable, be consistent with applicable United States Coast Guard standards or requirements adopted for hazardous substance transfers from vessels during non-daylight hours.
The department may use monies from the New Jersey Spill Compensation Fund, as authorized pursuant to paragraph (2) of subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), for program costs incurred in implementing the provisions of this act.
a. On the 31st day following the adoption of rules and regulations pursuant to section 5 of this act, no owner or operator of a refinery, storage, transfer terminal, or pipeline facility, or a vessel while in the waters of the State, shall transfer, or authorize or allow to be transferred any hazardous liquid between any such facility and a vessel, or among two or more vessels, unless, as prescribed by the department, either a boom or other containment device is in place as hereinafter provided, or the containment device is available, along with trained personnel, at the site of transfer operations on a stand-by basis for immediate deployment in the event of a discharge, spill or release during the transfer.
In the case of (1) a transfer of a hazardous liquid between a land-based facility and a vessel, or between two or more vessels at a facility, the owner or operator of the facility shall be responsible for the containment device, trained personnel, or other containment or mitigation measures required by the department, or (2) a vessel-to-vessel transfer occurring away from a land-based facility, the owner or operator of each of the vessels involved shall be responsible therefor.
b. If a containment device is required by the department to be in place during a transfer of a hazardous liquid, the device shall be deployed not less than 15 feet from the vessel or vessels prior to commencement of the transfer operation, except that in the case of a docked vessel the dock may be used to complete the encirclement of a vessel with a containment device.
The provisions of this act shall not apply to the transfer of a hazardous liquid to be used solely as fuel to power a vessel.
As used in this act, "hazardous liquid" shall mean a hazardous substance as such term is defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b) that is in liquid form at the time of transfer of the hazardous substance from facility to vessel or from vessel-to-vessel; "list hazardous liquid" means a hazardous liquid placed on a list prepared by the department pursuant to subsection a. of section 2 of this act.
a. The department shall identify individual or categories or classes of hazardous liquids, or the circumstances of a transfer of a hazardous liquid for which a containment device may be usefully and safely deployed without posing a substantial danger to the safety of a vessel or its crew. A list of all such hazardous liquids shall be identified and published by the department in the New Jersey Register.
b. The department (1) may require all facilities or vessels either to deploy, or to maintain on a stand-by basis a containment device during a transfer of any hazardous liquid listed by the department pursuant to subsection a. of this section, or (2) may require a particular facility or vessel to deploy a containment device during transfer operations for one or more list hazardous liquids, based upon the past record of the facility, or the owner or operator of a vessel, the nature of the hazards involved, including the characteristics of the hazardous liquid, the size, complexity or circumstances of the transfer, or the potential dangers to public health and safety, or to environmentally sensitive areas in reasonable proximity to the transfer operations.
c. In addition to requiring a containment device to be deployed or maintained on a stand-by basis during transfer operations for a list hazardous liquid, the department shall require such other equipment or chemicals to be maintained on a stand-by basis at the site of the transfer during the transfer of a hazardous liquid from any facility or vessel for purposes of minimizing the amount of a discharge, spill or release, and containing, removing or mitigating the adverse effects therefrom. The provisions of this subsection shall also apply to any hazardous liquid whether or not a list hazardous liquid.
d. The discharge prevention, control and countermeasure plan, and the discharge response, cleanup and removal contingency plan of a major facility shall set forth all of the prevention and response measures required by the department pursuant to this act. The department may, at any time, require amendments to plan provisions for transfer operations at a major facility in order to improve the discharge prevention and response capabilities of a facility.
Any ordinance, resolution, or regulation of a county or municipality inconsistent with the provisions of this act, including rules and regulations adopted hereunder, shall be of no effect upon final adoption of rules and regulations by the department pursuant to section 5 of this act.
Any person violating the provisions of this act shall be subject to the penalty and injunctive relief provisions of section 22 of P.L.1976, c.141 (C.58:10-23.11u).
Within one year of the effective date of this act, the department shall adopt, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations to implement the provisions of this act. Nothing in this act shall be construed to limit the authority of the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) to require a major facility, as defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b), to take all necessary measures pursuant thereto to improve the discharge or prevention capabilities of the facility prior to, or after the adoption of rules and regulations by the department pursuant to this act.
The department may use monies from the New Jersey Spill Compensation Fund, as authorized pursuant to paragraph (2) of subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), for program costs incurred in implementing the provisions of this act.
"Department" means the Department of Environmental Protection.
"Division" means the Division of Purchase and Property within the Department of the Treasury.
"Engineering services" means services or creative work such as consultation, investigation, the evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering studies, and the administration of construction for the purpose of determining compliance with drawings and specifications, the adequate performance of which requires engineering education, training, and experience, and the application of special knowledge of the mathematical, physical, and engineering sciences.
"Hazardous substance" means a hazardous substance as defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b).
"Remediation" means the cleanup, removal, mitigation, control or management of a discharge of a hazardous substance.
"Response action contract" or "contract" means a contract entered into by a response action contractor with the department, or any other agency of the State, or with the division on behalf of the department to provide services or work for, or relating to, the remediation, or attempted remediation, of a hazardous substance, or to prevent or mitigate damages to the public health, safety, or welfare, including damages to public or private property, pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), which services or work shall include evaluation, planning, engineering, surveying, design, construction, or other related services or work.
"Response action contractor" or "contractor" means a person, including an employee or subcontractor of a person, who enters into a response action contract, and, for the purposes of indemnification by the department, a surety that issues a bid, performance, or payment bond for the contractor on the response action contract, and who begins activities to meet the obligations under such bond but only in connection with such activities or obligations.
The department may determine to offer indemnification when it is deemed necessary to solicit qualified contractors and to promote adequate competition among qualified bidders. The department may offer indemnification of up to $25 million per occurrence and $50 million per contract as it deems necessary to solicit qualified contractors, depending on the nature, risk and size of the job. Any indemnification offered by the department shall be subject to the exemptions and deductible limits established herein and to terms and conditions established by the department with the advice of the Attorney General.
As part of a bidding process, the department may give preference to the extent a bidder is covered by an occurrence based policy of environmental impairment liability insurance. Any such preference shall be based on determinations articulated in the bid documents as to the relative value and cost to the State of insurance and indemnification.
Nothing in this act shall be construed to: (1) limit the right of an eligible claimant to pursue any remedy available under statutory or common law against a discharger or person in any way responsible for a discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g.), for any claim amount in excess of the liability limits established pursuant to this act; or (2) authorize indemnification of a response action contractor for a claim by a person in the employment of the contractor, including any subcontractor engaged by the contractor, or any employee thereof.
Nothing in this act shall be construed to authorize indemnification of a discharger or person in any way responsible for a discharge or of a response action contractor engaged in a remediation action on behalf of a discharger or person in any way responsible for a discharge whether or not the remediation action is funded in part by the State.
(1) the response action contractor shall be responsible, for all claims or judgments resulting from a single occurrence, for a total payment of an amount equal to either (a) 30% of the amount of the response action contract or (b) $1,500,000, whichever is less;
(2) the response action contractor shall be responsible, for all claims or judgments resulting from a single occurrence, for a total payment in an amount equal to 10% of either (a) the amount of the total claims or judgments that are in excess of the amount for which the response action contractor is responsible pursuant to paragraph (1) of this subsection, or (b) the amount of indemnification for such occurrence set forth in the indemnification agreement that is in excess of the amount for which the response action contractor is responsible pursuant to paragraph (1) of this subsection, whichever is less;
(3) the State shall be responsible for payment of one or more claims or judgments only up to the amount of indemnification set forth for such occurrence in the indemnification agreement, less the amounts for which the response action contractor is responsible pursuant to paragraphs (1) and (2) of this subsection;
(4) a response action contractor shall be responsible for the payment of a claim or judgment covered by an indemnification agreement only to the extent of the amounts for which the response action contractor is responsible pursuant to paragraphs (1) and (2) of this subsection. A response action contractor shall not be responsible for payment of any part of a claim or judgment arising from performance under a response action contract, covered by an indemnification agreement, where the amount of available indemnification for those claims or judgments has been exhausted. Nothing in this subsection shall be construed to limit the liability or responsibility of a response action contractor for payment of any claim or judgment except where the response action contractor has entered into an indemnification agreement with the State pursuant to this act and to the extent provided in that agreement.
The allocations and limits for the payment of claims or judgments for the State and response action contractors pursuant to this subsection do not apply to claims or judgments covered by the provisions of subsection c. of this section.
b. The department is authorized to lower, on a contract-by-contract or other basis, the amount for which the response action contractor shall be responsible, pursuant to subsection a. of this section, for all claims or judgments covered by the indemnification agreement. The department may lower the amount for which the response action contractor shall be responsible for specific kinds of services in a contract, including, but not limited to engineering services, or for all of the services provided in a contract. The department shall make the determination to lower the amount for which the response action contractor shall be responsible based on the availability of environmental liability insurance for contractors in the private market, on the number and quality of bidders, or on other factors the department deems relevant.
c. Legal defense and indemnification shall not apply to (1) claims that are found to have arisen from actions involving gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct by the contractor, (2) claims or judgments for punitive or exemplary damages, or (3) claims involving actions outside the scope of the response action contract.
d. Legal defense and indemnification provided to a contractor shall be on such terms and conditions as shall be prescribed by the department with the advice of the Attorney General consistent with the provisions of this act.
e. Legal defense and indemnification of a contractor pursuant to this section or section 9 of P.L.1991, c.373 (C.58:10-23.11f16), shall not bar the State from exercising any available legal remedies for the enforcement of a contract between, or on the behalf of, the department or other contracting agency and the contractor, the recovery of damages to which the department or agency may be entitled as a result of a contractor's failure to perform the contract, or for the recovery by the Attorney General of funds expended for the defense or indemnification of a contractor if the defense was undertaken in response to a claim brought against the contractor that is found to have arisen from gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct.
f. No person other than a contractor shall have the right to enforce a right of legal defense and indemnification pursuant to this section.
The Attorney General shall submit a certified voucher to the State for payment of the amount of the judgment or settlement and court costs.
No settlement shall be entered into by a contractor or his authorized representative if the amount of the settlement exceeds the contractor's deductible unless the settlement is approved by the Attorney General. If the contractor enters into such a settlement without the Attorney General's approval, this shall be deemed a waiver by the contractor of any right to indemnification for the settlement.
(1) the claimant fails to file a notice of claim with the contractor within 90 days of accrual of the claim, except that the Superior Court may permit a claimant to file a notice at any time within one year of accrual of the claim provided that the contractor and the State are not substantially prejudiced thereby, and provided further that the claimant shows sufficient reasons for his failure to file a notice of claim within the 90 days;
(2) two years have elapsed since accrual of the claim and the claimant has failed to file an action therefor; or
(3) the claimant or his authorized representative entered into a settlement with respect to the claim.
b. The provisions of this section shall not apply to a claim not subject to legal defense and indemnification pursuant to P.L.1991, c.373 (C.58:10-23.11f8 et al.). Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations specified in this section, after his coming or being of full age or sane mind.
b. If the Attorney General declines to appear and defend a contractor by reason of an actual or potential conflict of interest, the Attorney General shall authorize indemnification of the contractor for the amount of the judgment in excess of the amount of contractor's indemnification deductible and less the copayment, and reasonable legal expenses and court costs incurred by the contractor in defending against the amount of the claim or judgment in excess of the contractor's deductible.
c. If the Attorney General declines to appear and defend, or withdraws from defending, on the grounds that the act or omission giving rise to the claim or costs was not within the scope of the contract, or was the result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct on the part of the contractor, but the court finds that the act or omission was within the scope of the contract, or was not the result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct on the part of the contractor, the Attorney General shall authorize indemnification of the contractor for the amount of the judgment in excess of the amount of the contractor's indemnification deductible, and reasonable legal expenses and court costs incurred by the contractor in defending against the amount of the claim or judgment in excess of the contractor's deductible.
d. The State shall have the right to intervene in any case that may involve State indemnification and the court shall, at the request of the State, make a finding as to whether the contractor's actions were a result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct.
b. Nothing in P.L.1991, c.373 (C.58:10-23.11f8 et al.) shall be construed to limit the liability of a party responsible for a discharge for all costs recoverable pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g).
c. Nothing in this act shall be construed to affect any of the defenses and immunities available to the State pursuant to the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., or any other provisions contained therein, for claims against the State or any of its employees.
b. A surety's obligation shall not extend to any claim for damages based upon alleged negligence that resulted in personal injury, wrongful death, or damage to real or personal property, and no bond shall in any way be construed as a liability insurance policy. The surety shall in no event be liable on bonds to indemnify or compensate the obligee for loss or liability arising from personal injury or property damage whether or not caused by a breach of the bonded contract. Nothing herein shall relieve the surety's obligation to guarantee the contractor's performance of all conditions of the contract. Only the obligee named on the bond, and any person performing labor for a contractor or subcontractor covered by the surety bond, or any person providing materials for remediation work for which the bond is required pursuant to this section, shall have any claim against the surety under the bond. Unless otherwise provided for by the division in the bond, in the event of a default, the surety's liability on a performance bond shall be only for the cost of completion of the contract work in accordance with the plans and specifications, less the balance of funds remaining to be paid under the contract, up to the penal sum of the bond.
(1) the person acquired the real property after the discharge of that hazardous substance at the real property;
(2) the person did not discharge the hazardous substance, is not in any way responsible for the hazardous substance, and is not a corporate successor to the discharger or to any person in any way responsible for the hazardous substance or to anyone liable for cleanup and removal costs pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g); and
(3) the person has not, by contract, using the term of art "natural resource damages," expressly assumed the liability for the payment of compensation for damage to, or loss of, natural resources, or for the restoration of natural resources, that were injured by a discharge of a hazardous substance at the property.
b. The provisions of any other law, or any rule or regulation adopted pursuant thereto to the contrary notwithstanding, a person, who owns real property acquired on or after the effective date of P.L.1997, c.278 (C.58:10B-1.1 et al.), shall not be liable for cleanup and removal costs for the discharge of a hazardous substance that has migrated from the property provided that:
(1) the person acquired the real property after the discharge of that hazardous substance at the real property;
(2) the person did not discharge the hazardous substance, is not in any way responsible for the hazardous substance, and is not a corporate successor to the discharger or to any person in any way responsible for the hazardous substance or to anyone liable for cleanup and removal costs pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g);
(3) the person can demonstrate through the performance of a remedial investigation that the contamination identified on nearby or adjoining property, which is similar or identical to contamination on the property, originates from more than one source;
(4) the person can demonstrate through the performance of a remedial investigation that a remedial action for the contamination off the property is not necessary to limit the risk to the public health and the environment from that contamination; and
(5) the person has not, by contract, voluntarily assumed the liability from the person liable for cleanup and removal costs, for addressing the risks to public health and the environment from a discharge of a hazardous substance on the property that has migrated from the property prior to that person's acquisition of the property.
Only the person who is liable to clean up and remove the contamination pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g) and who does not have a defense to liability pursuant to subsection d. of that section shall be liable for any additional remediation costs or cleanup and removal costs necessary.
(1) The cost of restoring, repairing, or replacing any real or personal property damaged or destroyed by a discharge, any income lost from the time such property is damaged to the time such property is restored, repaired or replaced, and any reduction in value of such property caused by such discharge by comparison with its value prior thereto;
(2) The cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge;
(3) Loss of income or impairment of earning capacity due to damage to real or personal property, including natural resources destroyed or damaged by a discharge; provided that such loss or impairment exceeds 10 percent of the amount which claimant derives, based upon income or business records, exclusive of other sources of income, from activities related to the particular real or personal property or natural resources damaged or destroyed by such discharge during the week, month or year for which the claim is filed;
(4) Loss of tax revenue by the State or local governments for a period of one year due to damage to real or personal property proximately resulting from a discharge;
(5) Interest on loans obtained or other obligations incurred by a claimant for the purpose of ameliorating the adverse effects of a discharge pending the payment of a claim in full as provided by this act.
b. The damages which may be recovered by the fund, without regard to fault, subject to the defenses enumerated in subsection d. of this section against the owner or operator of a major facility or vessel, shall not exceed $50,000,000.00 for each major facility or $1,200 per gross ton for each vessel, except that such maximum limitation shall not apply and the owner or operator shall be liable, jointly and severally, for the full amount of such damages if it can be shown that such discharge was the result of (1) gross negligence or willful misconduct, within the knowledge and privity of the owner, operator or person in charge, or (2) a gross or willful violation of applicable safety, construction or operating standards or regulations. Damages which may be recovered from, or by, any other person shall be limited to those authorized by common or statutory law.
c. (1) Except as provided in section 2 of P.L.2005, c.43 (C.58:10-23.11g12), any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the department or a local unit pursuant to subsection b. of section 7 of P.L.1976, c.141 (C.58:10-23.11f).
(2) In addition to the persons liable pursuant to this subsection, in the case of a discharge of a hazardous substance from a vessel into the waters of the State, the owner or operator of a refinery, storage, transfer, or pipeline facility to which the vessel was en route to deliver the hazardous substance who, by contract, agreement, or otherwise, was scheduled to assume ownership of the discharged hazardous substance, and any other person who was so scheduled to assume ownership of the discharged hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs if the owner or operator of the vessel did not have the evidence of financial responsibility required pursuant to section 2 of P.L.1991, c.58 (C.58:10-23.11g2).
Where a person is liable for cleanup and removal costs as provided in this paragraph, any expenditures made by the administrator for that cleanup and removal shall constitute a debt of that person to the fund. The debt shall constitute a lien on all property owned by that person when a notice of lien identifying the nature of the discharge and the amount of the cleanup, removal and related costs expended from the fund is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment or order docket the name and address of the liable person and the amount of the lien as set forth in the notice of lien. Upon entry by the clerk, the lien, to the amount committed by the administrator for cleanup and removal, shall attach to the revenues and all real and personal property of the liable person, whether or not that person is insolvent.
For the purpose of determining priority of this lien over all other claims or liens which are or have been filed against the property of an owner or operator of a refinery, storage, transfer, or pipeline facility, the lien on the facility to which the discharged hazardous substance was en route shall have priority over all other claims or liens which are or have been filed against the property. The notice of lien filed pursuant to this paragraph which affects any property of a person liable pursuant to this paragraph other than the property of an owner or operator of a refinery, storage, transfer, or pipeline facility to which the discharged hazardous substance was en route, shall have priority from the day of the filing of the notice of the lien over all claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a notice of lien pursuant to this paragraph.
To the extent that a person liable pursuant to this paragraph is not otherwise liable pursuant to paragraph (1) of this subsection, or under any other provision of law or under common law, that person may bring an action for indemnification for costs paid pursuant to this paragraph against any other person who is strictly liable pursuant to paragraph (1) of this subsection.
Nothing in this paragraph shall be construed to extend or negate the right of any person to bring an action for contribution that may exist under P.L.1976, c.141, or any other act or under common law.
(3) In addition to the persons liable pursuant to this subsection, any person who owns real property acquired on or after September 14, 1993 on which there has been a discharge prior to the person's acquisition of that property and who knew or should have known that a hazardous substance had been discharged at the real property, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the department or a local unit pursuant to subsection b. of section 7 of P.L.1976, c.141 (C.58:10-23.11f). Nothing in this paragraph shall be construed to alter liability of any person who acquired real property prior to September 14, 1993.
d. (1) In addition to those defenses provided in this subsection, an act or omission caused solely by war, sabotage, or God, or a combination thereof, shall be the only defenses which may be raised by any owner or operator of a major facility or vessel responsible for a discharge in any action arising under the provisions of this act.
(2) A person, including an owner or operator of a major facility, who owns real property acquired on or after September 14, 1993 on which there has been a discharge, shall not be liable for cleanup and removal costs or for any other damages to the State or to any other person for the discharged hazardous substance pursuant to subsection c. of this section or pursuant to civil common law, if that person can establish by a preponderance of the evidence that subparagraphs (a) through (d) apply, or if applicable, subparagraphs (a) through (e) apply:
(a) the person acquired the real property after the discharge of that hazardous substance at the real property;
(b) (i) at the time the person acquired the real property, the person did not know and had no reason to know that any hazardous substance had been discharged at the real property, or (ii) the person acquired the real property by devise or succession, except that any other funds or property received by that person from the deceased real property owner who discharged a hazardous substance or was in any way responsible for a hazardous substance, shall be made available to satisfy the requirements of P.L.1976, c.141, or (iii) the person complies with the provisions of subparagraph (e) of paragraph (2) of this subsection;
(c) the person did not discharge the hazardous substance, is not in any way responsible for the hazardous substance, and is not a corporate successor to the discharger or to any person in any way responsible for the hazardous substance or to anyone liable for cleanup and removal costs pursuant to this section;
(d) the person gave notice of the discharge to the department upon actual discovery of that discharge.
To establish that a person had no reason to know that any hazardous substance had been discharged for the purposes of this paragraph (2), the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property. For the purposes of this paragraph (2), all appropriate inquiry shall mean the performance of a preliminary assessment, and site investigation, if the preliminary assessment indicates that a site investigation is necessary, as defined in section 23 of P.L.1993, c.139 (C.58:10B-1), and performed in accordance with rules and regulations promulgated by the department defining these terms.
Nothing in this paragraph (2) shall be construed to alter liability of any person who acquired real property prior to September 14, 1993; and
(e) For the purposes of this subparagraph the person must have (i) acquired the property subsequent to a hazardous substance being discharged on the site and which discharge was discovered at the time of acquisition as a result of the appropriate inquiry, as defined in this paragraph (2), (ii) performed, following the effective date of P.L.1997, c.278, a remediation of the site or discharge consistent with the provisions of section 35 of P.L.1993, c.139 (C.58:10B-12), or, relied upon a valid final remediation document for a remediation performed prior to acquisition, or, obtained a remedial action workplan certified by a licensed site remediation professional retained for the site after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) and continued to comply with the conditions of that workplan, or obtained approval of a remedial action workplan by the department after the effective date of P.L.1997, c.278 and continued to comply with the conditions of that workplan, and (iii) established and maintained all engineering and institutional controls as may be required pursuant to sections 35 and 36 of P.L.1993, c.139. A person who complies with the provisions of this subparagraph by actually performing a remediation of the site or discharge as set forth in (ii) above shall be issued, upon application, a no further action letter by the department or a response action outcome by a licensed site remediation professional, as applicable. A person who complies with the provisions of this subparagraph either by receipt of a final remediation document following the effective date of P.L.1997, c.278, or by relying on a previously issued final remediation document shall not be liable for any further remediation including any changes in a remediation standard or for the subsequent discovery of a hazardous substance, at the site, or emanating from the site, if the remediation was for the entire site, and the hazardous substance was discharged prior to the person acquiring the property. Notwithstanding any other provisions of this subparagraph, a person who complies with the provisions of this subparagraph only by virtue of the existence of a previously issued final remediation document shall receive no liability protections for any discharge which occurred during the time period between the issuance of the final remediation document and the property acquisition. Compliance with the provisions of this subparagraph (e) shall not relieve any person of any liability for a discharge that is off the site of the property covered by the final remediation document, for a discharge that occurs at that property after the person acquires the property, for any actions that person negligently takes that aggravates or contributes to a discharge of a hazardous substance, for failure to comply in the future with laws and regulations, or if that person fails to maintain the institutional or engineering controls on the property or to otherwise comply with the provisions of the final remediation document.
(3) Notwithstanding the provisions of paragraph (2) of this subsection to the contrary, if a person who owns real property obtains actual knowledge of a discharge of a hazardous substance at the real property during the period of that person's ownership and subsequently transfers ownership of the property to another person without disclosing that knowledge, the transferor shall be strictly liable for the cleanup and removal costs of the discharge and no defense under this subsection shall be available to that person.
(4) Any federal, State, or local governmental entity which acquires ownership of real property through bankruptcy, tax delinquency, abandonment, escheat, eminent domain, condemnation or any circumstance in which the governmental entity involuntarily acquires title by virtue of its function as sovereign, or where the governmental entity acquires the property by any means for the purpose of promoting the redevelopment of that property, shall not be liable, pursuant to subsection c. of this section or pursuant to common law, to the State or to any other person for any discharge which occurred or began prior to that ownership. This paragraph shall not provide any liability protection to any federal, State or local governmental entity which has caused or contributed to the discharge of a hazardous substance. This paragraph shall not provide any liability protection to any federal, State, or local government entity that acquires ownership of real property by condemnation or eminent domain where the real property is being remediated in a timely manner at the time of the condemnation or eminent domain action.
(5) A person, including an owner or operator of a major facility, who owns real property acquired prior to September 14, 1993 on which there has been a discharge, shall not be liable for cleanup and removal costs or for any other damages to the State or to any other person for the discharged hazardous substance pursuant to subsection c. of this section or pursuant to civil common law, if that person can establish by a preponderance of the evidence that subparagraphs (a) through (d) apply:
(a) the person acquired the real property after the discharge of that hazardous substance at the real property;
(b) (i) at the time the person acquired the real property, the person did not know and had no reason to know that any hazardous substance had been discharged at the real property, or (ii) the person acquired the real property by devise or succession, except that any other funds or property received by that person from the deceased real property owner who discharged a hazardous substance or was in any way responsible for a hazardous substance, shall be made available to satisfy the requirements of P.L.1976, c.141;
(c) the person did not discharge the hazardous substance, is not in any way responsible for the hazardous substance, and is not a corporate successor to the discharger or to any person in any way responsible for the hazardous substance or to anyone liable for cleanup and removal costs pursuant to this section;
(d) the person gave notice of the discharge to the department upon actual discovery of that discharge.
To establish that a person had no reason to know that any hazardous substance had been discharged for the purposes of this paragraph (5), the person must have undertaken, at the time of acquisition, all appropriate inquiry on the previous ownership and uses of the property based upon generally accepted good and customary standards.
Nothing in this paragraph (5) shall be construed to alter liability of any person who acquired real property on or after September 14, 1993.
e. Neither the fund nor the Sanitary Landfill Contingency Fund established pursuant to P.L.1981, c.306 (C.13:1E-100 et seq.) shall be liable for any damages incurred by any person who is relieved from liability pursuant to subsection d. or f. of this section for a remediation that involves the use of engineering controls but the fund and the Sanitary Landfill Contingency Fund shall be liable for any remediation that involves only the use of institutional controls if after a valid final remediation document has been issued the department orders additional remediation except that the fund and the Sanitary Landfill Contingency Fund shall not be liable for any additional remediation that is required to remove an institutional control.
f. Notwithstanding any other provision of this section, a person, who owns real property acquired on or after the effective date of P.L.1997, c.278 (C.58:10B-1.1 et al.), shall not be liable for any cleanup and removal costs or damages, under this section or pursuant to any other statutory or civil common law, to any person, other than the State and the federal government, harmed by any hazardous substance discharged on that property prior to acquisition, and any migration off that property related to that discharge, provided all the conditions of this subsection are met:
(1) the person acquired the real property after the discharge of that hazardous substance at the real property;
(2) the person did not discharge the hazardous substance, is not in any way responsible for the hazardous substance, and is not a corporate successor to the discharger or to any person in any way responsible for the hazardous substance or to anyone liable for a discharge pursuant to this section;
(3) the person gave notice of the discharge to the department upon actual discovery of that discharge;
(4) (a) within 30 days after acquisition of the property, the person commenced a remediation of the discharge, including any migration, pursuant to a department oversight document executed prior to acquisition, or (b) for property acquired after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the person provides written notice of the acquisition to the department prior to or on the date of acquisition and the person remediates the property pursuant to the provisions of section 30 of P.L.2009, c.60 (C.58:10B-1.3), and (c) the department is satisfied that remediation was completed in a timely and appropriate fashion; and
(5) Within ten days after acquisition of the property, or within 30 days after the expiration of the period or periods allowed for the right of redemption pursuant to tax foreclosure law, the person agrees in writing to provide access to the State for remediation and related activities, as determined by the State.
The provisions of this subsection shall not relieve any person of any liability:
(1) for a discharge that occurs at that property after the person acquired the property;
(2) for any actions that person negligently takes that aggravates or contributes to the harm inflicted upon any person;
(3) if that person fails to maintain the institutional or engineering controls on the property or to otherwise comply with the provisions of a final remediation document or a remedial action workplan and a person is harmed thereby;
(4) for any liability to clean up and remove, pursuant to the department's regulations and directions, any hazardous substances that may have been discharged on the property or that may have migrated therefrom; and
(5) for that person's failure to comply in the future with laws and regulations.
g. Nothing in the amendatory provisions to this section adopted pursuant to P.L.1997, c.278 shall be construed to remove any defense to liability that a person may have had pursuant to subsection e. of this section that existed prior to the effective date of P.L.1997, c.278.
h. Nothing in this section shall limit the requirements of any person to comply with P.L.1983, c.330 (C.13:1K-6 et al.).
The owners and operators of vessels shall establish and maintain evidence of financial responsibility for the purpose of assuring adequate financial resources to pay for the cost of cleanup and removal of a discharged hazardous substance as a result of the transportation of a hazardous substance by vessel or a transfer of that hazardous substance between a refinery, storage, transfer, or pipeline facility and a vessel or between two vessels. Evidence of financial responsibility shall be established by a method set forth under s.108 of the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980" (42 U.S.C. s.9607) or s.1016 of the "Oil Pollution Act of 1990", any regulation adopted pursuant thereto, or any other federal law requiring evidence of financial responsibility to operate a vessel in the waters of the United States.
The evidence of financial responsibility required by this section shall be the only evidence required by the State that a vessel has the ability to meet the liabilities incurred for a violation of P.L.1976, c.141, but nothing in this section shall be construed to limit the liability of any person for a discharge of a hazardous substance for which the person is liable pursuant to P.L.1976, c.141 or under any other law or under common law. The State Police shall have the power to inspect any vessel and to require the display of evidence of financial responsibility in order to ensure compliance with this section. The State Police may deny entry to any vessel to any place in the State, or to the navigable waters under the jurisdiction of the State, or detain at the place, any vessel that, upon request, does not produce the evidence of financial responsibility required for that vessel pursuant to this section. Any vessel subject to the requirements of this section which is found in the navigable waters of the State without the necessary evidence of financial responsibility for the vessel shall be subject to seizure by and forfeiture to the State.
(1) the federal National Contingency Plan prepared pursuant to 33 U.S.C. s.1321;
(2) a State contingency plan;
(3) a State or federal vessel-specific contingency plan;
(4) the direction of a federal on-scene coordinator or an appropriate State official; or
(5) the emergency request of a person who is attempting to prevent the threatened discharge of petroleum from a vessel or who is otherwise liable for cleanup and removal costs of the initial discharge from the vessel pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), provided that a person rendering care, assistance, or advice shall provide notification of the threatened discharge or emergency, to the extent actually known to such person, to the United States Coast Guard or an appropriate federal or State official, as soon as practicable (although not of necessity before rendering care, assistance or advice) in the event such person is attempting to unload petroleum from a vessel to prevent or mitigate a discharge, or to tow, push, maneuver or otherwise physically move a vessel transporting petroleum to end the emergency.
b. The defense from liability granted pursuant to subsection a. of this section shall not apply (1) to a person otherwise liable for cleanup and removal costs of the initial discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), (2) with respect to personal injury or wrongful death, or (3) if the person is grossly negligent or engages in willful misconduct.
c. A person liable for the initial discharge or threat of discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g) is liable for any cleanup and removal costs and damages that another person is relieved of under this section.
d. Nothing in this section shall limit other defenses or immunities to liability that may exist in P.L.1976, c.141.
e. For the purposes of this section "petroleum" does not include dredged spoil.
"Active participation in the management" or "participation in the management" means actual participation in the management or operational affairs by the holder of the security interest and shall not include the mere capacity, or ability to influence, or the unexercised right to control vessel, facility , or underground storage tank facility operations.
(1) A holder of a security interest shall be considered to be in active participation in the management, while the borrower is still in possession, only if the holder either:
(a) exercises decision making control over the borrower's environmental compliance, such that the holder has undertaken responsibility for the borrower's waste disposal or hazardous substance handling practices; or
(b) exercises control at a level comparable to that of a manager of the borrower's enterprise, such that the holder has assumed or manifested responsibility for the overall management of the enterprise encompassing the day-to-day decision making of the enterprise with respect to:
(i) environmental compliance; or
(ii) all, or substantially all, of the operational (as opposed to financial or administrative) aspects of the enterprise other than environmental compliance. Operational aspects of the enterprise include functions such as that of facility manager, underground storage tank facility manager, or plant manager, operations manager, chief operating officer, or chief executive officer. Financial or administrative aspects include functions such as that of credit manager, accounts payable or receivable manager, or both, personnel manager, controller, chief financial officer, or similar functions.
(2) No act or omission prior to the time that indicia of ownership are held primarily to protect a security interest constitutes evidence of participation in management. A prospective holder who undertakes or requires an environmental inspection of the vessel, facility, or underground storage tank facility in which indicia of ownership are to be held, or requires a prospective borrower to clean up a vessel, facility , or underground storage tank facility or to comply or come into compliance (whether prior or subsequent to the time that indicia of ownership are held primarily to protect a security interest) with any applicable law or regulation, is not by such action considered to be participating in the vessel's, facility's, or underground storage tank facility's management, provided however, that a holder shall not be required to conduct or require an inspection to qualify for the protection for holders granted pursuant to sections 1 through 5 of P.L.1993, c.112 (C.58:10-23.11g4 through 58:10-23.11g8), and the liability of a holder shall not be based on or affected by the holder not conducting or not requiring an inspection.
(3) Actions that are consistent with holding ownership indicia primarily to protect a security interest do not constitute participation in management for purposes of sections 1 through 5 of P.L.1993, c.112 (C.58:10-23.11g4 through 58:10-23.11g8). The authority for the holder to make such actions may, but need not, be contained in contractual or other documents specifying requirements for financial, environmental, and other warranties, covenants, conditions, representations or promises from the borrower. Loan policing and work out activities cover and include all activities up to foreclosure and its equivalents.
(a) A holder who engages in policing activities prior to foreclosure shall remain within the exemption provided that the holder does not by such actions participate in the management of the vessel, facility, or underground storage tank facility. Such actions include, but are not limited to, requiring the borrower to clean up the vessel, facility, or underground storage tank facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, State, and local environmental and other laws, rules and regulations during the term of the security interest; securing or exercising authority to monitor or inspect the vessel, facility, or underground storage tank facility (including on-site inspections) in which indicia of ownership are maintained, or the borrower's business or financial conditions during the term of the security interest; or taking other actions to adequately police the loan or security interest (such as requiring a borrower to comply with any warranties, covenants, conditions, representations or promises from the borrower).
(b) A holder who engages in work out activities prior to foreclosure and its equivalents shall remain within the exemption provided that the holder does not by such action participate in the management of the vessel, facility, or underground storage tank facility. For purposes of this act, "work out" refers to those actions by which a holder, at any time prior to foreclosure and its equivalents, seeks to: prevent, cure, or mitigate a default by the borrower or obligor; or preserve or prevent the diminution of the value of the security. Work out activities include, but are not limited to: restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights pursuant to an assignment of accounts or other amounts owing to an obligor; requiring or exercising rights pursuant to an escrow agreement pertaining to amounts owing to an obligor; providing specific or general financial or other advice, suggestions, counseling, or guidance; and exercising any right or remedy the holder is entitled to by law or under any warranties, covenants, conditions, representations or promises from the borrower.
(4) A holder does not participate in the management of a vessel, facility, or underground storage tank facility by making any response or performing any response action or undertaking any cleanup or removal or similar action under the federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub.L. 96-510 (42 U.S.C. s.9601 et seq.), the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), or any other State or federal environmental law or regulation.
"Date of foreclosure" means the date on which the holder obtains legal or equitable title to the vessel or facility pursuant to or incident to foreclosure.
"Fair consideration" means the value of the security interest when calculated as an amount equal to or in excess of the sum of the outstanding principal (or comparable amount in the cases of a lease that constitutes a security interest) owed to the holder immediately preceding the acquisition of full title (or possession in the case of property subject to a lease financing transaction) pursuant to foreclosure and its equivalents, plus any unpaid interest, rent or penalties (whether arising before or after foreclosure and its equivalents), plus all reasonable and necessary costs, fees, or other charges incurred by the holder incident to work out, foreclosure and its equivalents, retention, maintaining the business activities of the enterprise, preserving, protecting and preparing the vessel, facility, or underground storage tank facility prior to sale, re-lease of property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee) or other disposition, plus response costs incurred under applicable federal or State environmental cleanup laws or regulations, or at the direction of an on-scene coordinator, less any amounts received by the holder in connection with any partial disposition of the property, net revenues received as a result of maintaining the business activities of the enterprise, and any amounts paid by the borrower subsequent to the acquisition of full title (or possession in the case of property subject to a lease financing transaction) pursuant to foreclosure and its equivalents. In the case of a holder maintaining indicia of ownership primarily to protect a junior security interest, fair consideration is the value of all outstanding higher priority security interests plus the value of the security interest held by the junior holder, each calculated as set forth in this definition.
"Foreclosure" or "foreclosure and its equivalents" means purchase at foreclosure sale; acquisition or assignment of title in lieu of foreclosure; termination of a lease or other repossession; acquisition of a right to title or possession; an agreement in satisfaction of the obligation; or any other form or informal manner (whether pursuant to law or under warranties, covenants, conditions, representations or promises from the borrower) by which the holder acquires title to or possession of the secured property.
"Holder" is a person who maintains indicia of ownership primarily to protect a security interest. A holder includes the initial holder (such as a loan originator), any subsequent holder (such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market), a guarantor of an obligation, surety, or any other person who holds ownership indicia primarily to protect a security interest, or a receiver or other person who acts on behalf or for the benefit of a holder.
"Indicia of ownership" means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in real or personal property securing a loan or other obligation, including any legal or equitable title to real or personal property acquired incident to foreclosure and its equivalents. Evidence of such interests include, but are not limited to, mortgages, deeds of trust, liens, surety bonds and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased property (hereinafter "lease financing transaction"), legal or equitable title obtained pursuant to foreclosure and their equivalents. Evidence of such interests also includes assignments, pledges, or other rights to or other forms of encumbrance against property that are held primarily to protect a security interest. A person is not required to hold title or a security interest in order to maintain indicia of ownership.
"Primarily to protect a security interest" means that the holder's indicia of ownership are held primarily for the purpose of securing payment or performance of an obligation but does not include indicia of ownership held primarily for investment purposes, nor ownership indicia held primarily for purposes other than as a protection for a security interest. A holder may have other, secondary reasons for maintaining indicia of ownership, but the primary reasons why any ownership indicia are held shall be as protection for a security interest.
"Security interest" means an interest in a vessel or facility created or established for the purpose of securing a loan or other obligation. Security interests include, but are not limited to, mortgages, deeds of trusts, liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trusts receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, and consignments, if the transaction creates or establishes an interest in a vessel or facility for the purpose of securing a loan or other obligation.
"Underground storage tank" shall have the same meaning as set forth in section 2 of P.L. 1986, c.102 (C.58:10A-22).
"Underground storage tank facility" shall mean one or more underground storage tanks.
a. For purposes of establishing that a holder is seeking to sell, re-lease property held pursuant to a new lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or divest a vessel, facility, or underground storage tank facility in a reasonably expeditious manner, the holder may use whatever commercially reasonable means are relevant or appropriate with respect to the vessel, facility, or underground storage tank facility, or may employ the means specified in this section.
b. (1) A holder that outbids, rejects or fails to act upon a written bona fide, firm offer of fair consideration within 90 days of receipt of the offer, and which offer is received at any time after six months following the date of foreclosure, shall not be deemed to be using a commercially reasonable means for the purpose of this section. A "written bona fide, firm offer" means a legally enforceable, commercially reasonable, cash offer solely for the foreclosed vessel, facility, or underground storage tank facility, including all material terms of the transaction, from a ready, willing, and able purchaser who demonstrates to the holder's satisfaction the ability to perform. For purposes of this subsection, the six-month period begins to run from the time that the holder acquires a marketable title, provided that the holder, after the expiration of any redemption or other waiting period provided by law, was acting diligently to acquire marketable title.
(2) A holder that outbids, rejects, or fails to act upon an offer of fair consideration for the vessel, facility, or underground storage tank facility within the 90-day period, establishes that the ownership indicia in the secured property are not held primarily to protect the security interest, unless the holder is required, in order to avoid liability under federal or State law, to make a higher bid, to obtain a higher offer, or to seek or obtain an offer in a different manner.
c. A holder establishes that it is proceeding in a commercially reasonable manner after foreclosure by, within 12 months following foreclosure, listing the vessel, facility, or underground storage tank facility with a broker, dealer, or agent who deals with the type of property in question, or by advertising the vessel, facility, or underground storage tank facility as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the vessel, facility, or underground storage tank facility in question, or a newspaper of general circulation (defined as one with a circulation over 10,000, or one suitable under any applicable federal, State, or local rules of court for publication required by court order or rules of civil procedure) covering the area where the property is located. For purposes of this subsection, the 12-month period begins to run from the time that the holder acquires marketable title, provided that the holder, after the expiration of any redemption or other waiting period provided by law, was acting diligently to acquire marketable title.
d. A holder shall sell, re-lease the property held pursuant to a new lease financing transaction, or otherwise divest such vessel, facility, or underground storage tank facility in a reasonably expeditious manner, but not later than five years after the date of foreclosure, except that a holder may continue to hold the property for a time period longer than five years without losing status as a person who maintains indicia of ownership primarily to protect a security interest if (1) the holder has made a good faith effort to sell, re-lease or otherwise divest itself of the property using commercially reasonable means or other procedures prescribed by this act; (2) the holder has obtained any approvals required pursuant to applicable federal or State banking or other lending laws to continue its possession of the property; and (3) the holder has exercised reasonable custodial care to prevent or mitigate any new discharges from the vessel, facility, or underground storage tank facility that could substantially diminish the market value of the property.
e. (1) The exemption granted to holders pursuant to this section shall not apply to the liability for any new discharge from the vessel, facility, or underground storage tank facility, occurring after the date of foreclosure, that is caused by acts or omissions of the holder which can be shown, based on a preponderance of the evidence, to have been negligent. In the event a property has both preexisting and new discharges, the liability, if any, allocable to the holder pursuant to this subsection shall be limited to those cleanup costs or damages that relate directly to the new discharge. In the event there is a substantial commingling of a new discharge with a preexisting discharge, the liability, if any, allocable to the holder pursuant to this subsection shall be limited to the cleanup costs or damages in excess of those cleanup costs or damages relating to the preexisting discharge.
In order to establish that a discharge occurred or began prior to the date of foreclosure, a holder may perform, but shall not be required to perform, an environmental audit, in accordance with any applicable Department of Environmental Protection regulations and guidelines, to identify such discharges at the vessel, facility, or underground storage tank facility. Upon receipt of a complete audit from the holder, the Department of Environmental Protection shall, within 90 days of its receipt of the audit, review the audit and transmit its findings to the holder. The Department of Environmental Protection may charge reasonable fees and adopt any additional regulations necessary to provide guidelines for the submission and review of such audits.
(2) Nothing in this subsection shall be deemed to impose liability for a new discharge from the vessel, facility, or underground storage tank facility that is authorized pursuant to a federal or State permit or cleanup procedure.
(3) The exemption granted to holders of indicia of ownership to protect a security interest shall not apply to liability, if any, pursuant to applicable law and regulation, for arranging for the offsite disposal or treatment of a hazardous substance or by accepting for transportation and disposing of a hazardous substance at an offsite facility selected by the holder.
f. (1) A holder who acquires an underground storage tank facility continues to hold the exemption from liability for the underground storage tank facility granted to holders pursuant to this section if there is an operator of the underground storage tank facility, other than the holder, who is in control of the underground storage tank facility or has responsibility for compliance with applicable federal and State requirements.
(2) If an operator does not exist, a holder continues to maintain the exemption from liability for the underground storage tank facility granted to holders pursuant to this section if the holder: ( i) empties all underground storage tank facilities within 60 days after foreclosure or within 60 days after the effective date of P.L.1997, c.278 (C.58:10B-1.1 et al.), whichever is later, so that no more than one inch of residue, or .3 percent by weight of the total capacity of the underground storage tank facility remains in the underground storage tank facility, leaves vent lines open and functioning, and caps and secures all other lines, pumps, manways, and ancillary equipment; (ii) empties those underground storage tank facilities that are discovered after foreclosure within 60 days of discovery or within 60 days of the effective date of P.L.1997, c.278, whichever is later, so that no more than one inch of residue, or .3 percent by weight of the total capacity of the underground storage tank facility remains in the system, leaves vent lines open and functioning, and caps and secures all other lines, pumps, manways, and ancillary equipment; and (iii) permanently closes the underground storage tank facility pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.) or temporarily closes the underground storage tank facility.
g. An underground storage tank facility may be temporarily closed until a subsequent purchaser has acquired marketable title to the underground storage tank facility. When a subsequent purchaser acquires marketable title to the facility, the purchaser shall operate the underground storage tank facility in accordance with applicable State and federal laws or shall permanently close or remove the underground storage tank facility in accordance with the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.).
For the purposes of this section, an underground storage tank facility shall be considered temporarily closed if a holder continues to operate and maintain corrosion protection and reports suspected releases to the Department of Environmental Protection. If the underground storage tank facility has not been upgraded to comply with the provisions of P.L.1986, c.102 and the applicable federal law or does not comply with the standards for new underground storage tanks pursuant to State and federal law except for spill and overfill protection, and is temporarily closed for 12 months or more following foreclosure, the holder shall conduct a site investigation of the underground storage tank facility in accordance with rules and regulations adopted by the department and shall be required to take any emergency response actions necessary to prevent, contain or mitigate a continuing or new discharge that poses an immediate threat to the environment or to the public health, safety or welfare.
b. Nothing in sections 1 through 5 of P.L. 1993, c. 112 (C.58:10-23.11g4 through 58:10-23.11g8) shall be deemed to prohibit or limit the rights of the Department of Environmental Protection, pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f), to direct the holder to take any emergency response actions, including closure of the vessel, facility, or underground storage tank facility, necessary to prevent, contain or mitigate a continuing or new discharge that poses an immediate threat to the environment or to the public health, safety or welfare.
c. (1) If a holder forecloses on a vessel, facility, or underground storage tank facility at which it has actual knowledge a discharge occurred or began prior to the date of foreclosure, the holder shall, within 30 days of the date of foreclosure, notify the Department of Environmental Protection that foreclosure has occurred. Any person who fails to give notice required pursuant to this subsection or knowingly gives or causes to be given false information in any such report, shall be subject to a civil penalty not to exceed $25,000. A court, in determining the amount of the penalty to be imposed, shall consider, among other relevant factors, the amount of any damages caused by the failure to give timely notice and whether the failure to notify was inadvertent or intentional.
(2) The holder shall immediately notify the Department of Environmental Protection of any new discharge, of which it has actual knowledge, occurring after the date of foreclosure, from the vessel, facility, or underground storage tank facility. Any person who fails to give notice required pursuant to this subsection or knowingly gives or causes to be given any false information in any such report, shall be subject to a civil penalty not to exceed $10,000 per day for each violation. A court, in determining the amount of the penalty to be imposed and the appropriateness of imposing multiple penalties for a continuing offense, shall consider, among other relevant factors, the amount of any damages caused by the failure to give timely notice and whether the failure to notify was inadvertent or intentional.
(3) Any penalty incurred under this section may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law," N.J.S.2A:58-1 et seq., in the Superior Court or a municipal court. Failure to give any required notice pursuant to this subsection shall not cause the holder to lose its status as a person who maintains indicia of ownership primarily to protect a security interest.
"Governmental unit" means the State, a municipality, county, or other political subdivision of the State, or any agency thereof authorized to administer, protect and maintain lands or structures for recreation or conservation purposes;
"Recreation or conservation purposes" means the use of lands for parks, natural areas, ecological and biological study, historic areas, historic buildings or structures, forests, trails, camping, fishing, water reserves, wildlife preserves, hunting, boating, winter sports and similar uses for either public outdoor recreation or conservation of natural resources, or both.
b. A governmental unit that holds an easement interest in any real property for recreation or conservation purposes on which there has been a discharge of a hazardous substance, shall not be liable pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), any other law, or common law, for cleanup and removal costs, or for any direct or indirect damages, due to the discharge of a hazardous substance on the property. The provisions of this section shall not apply to a governmental unit if that entity has caused or contributed to the discharge of a hazardous substance on the property.
(2) The liability protection provided in paragraph (1) of this subsection shall not apply: (a) if the Commissioner of Environmental Protection determines, in writing, that the discharged hazardous substance contributed significantly, or could contribute significantly, to the cost of the remediation or the cleanup and removal; (b) if the person who discharges, or is in any way responsible for a discharged hazardous substance, impedes the performance of the cleanup at the site or fails to comply with a request for information issued by the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.); or (c) if the person has been convicted of a criminal offense for the conduct to which the liability protection would otherwise apply.
(3) In an action for contribution brought pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f), the contribution plaintiff shall have the burden of proof to demonstrate that the person does not meet the conditions for the protection from liability as provided in paragraph (1) of this subsection.
b. (1) Notwithstanding the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g), any rule or regulation adopted pursuant thereto, or any other law to the contrary, any person who discharges, or is in any way responsible for a discharged hazardous substance, at a site included on the National Priorities List pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. s.9601 et seq., shall not be liable for cleanup and removal costs or for the costs of remediation of the site if the person can demonstrate:
(a) the discharged hazardous substance consisted solely of municipal solid waste; and
(b) (i) the discharged hazardous substance originated from a residence,
(ii) the discharged hazardous substance originated from a business entity that, during the three years preceding the discharge, employed an average of not more than 100 full-time workers, or the equivalent, and is a small business concern as defined in the federal "Small Business Act," 15 U.S.C. s.631 et seq., from which all of the municipal solid waste attributable to the entity at the site was generated, or
(iii) the municipal solid waste originated from an organization described in section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C. s.501(c)(3), that is exempt from taxation pursuant to section 501(a) of the federal Internal Revenue Code, 26 U.S.C. s.501(a), and during the taxable year prior to discharge, the organization employed not more than 100 full-time workers, or the equivalent, at the location from which the municipal solid waste originated.
(2) The liability protection provided in paragraph (1) of this subsection shall not apply: (a) if the Commissioner of Environmental Protection determines, in writing, that the municipal solid waste contributed significantly, or could contribute significantly, to the cost of the remediation or the cleanup and removal; (b) if the person who discharged, or is in any way responsible for a discharged hazardous substance, impedes the performance of the cleanup at the site or fails to comply with a request for information issued by the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.); or (c) if the person has been convicted of a criminal offense for the conduct to which the liability protection would otherwise apply.
(3) In an action for contribution brought pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f), the contribution plaintiff shall have the burden of proof to demonstrate that the person does not meet the conditions for protection from liability as provided in paragraph (1) of this subsection.
c. Any person who brings a contribution action pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f) after the effective date of this section shall be liable to the defendant for all reasonable costs of defending the action, including all reasonable attorney's fees and expert witness fees, if the defendant is not liable for contribution because of a protection from liability as provided in this section.
d. As used in this section, "municipal solid waste" means solid waste of the type generated by a household or solid waste generated by a commercial, industrial, or institutional entity that is essentially the same as waste generated by a household, is collected and disposed of with other municipal waste as part of the normal municipal solid waste collection service, and contains a relative quantity of hazardous substances contained in waste generated by a typical single family household. Municipal solid waste may include, but need not be limited to, food and yard waste, paper, clothing, appliances, consumer product packaging, disposable diapers, office supplies, cosmetics, glass and metal food containers, elementary or secondary school science laboratory waste, and household hazardous waste.
When a hazardous substance other than petroleum which has not been previously taxed is transferred from a major in-State facility to a facility which is not a major facility, the transferor shall be liable for tax payment for said transfer.
b. (1) (a) The tax shall be $0.023 per barrel transferred and in the case of the transfer of hazardous substances other than petroleum or petroleum products, the tax shall be 1.53% of the fair market value of the product; provided, however, that with respect to transfers of hazardous substances other than petroleum or petroleum products which are or contain any precious metals to be recycled, refined, or rerefined in this State, which are transferred into this State subsequent to being recycled, refined or rerefined, or which are or contain elemental phosphorus, or which are elemental antimony or antimony trioxide sold for use in the manufacture or for the purpose of fire retardants, the tax shall be $0.023 per barrel of the hazardous substance; and provided further, however, that the total aggregate tax due for any individual taxpayer facility which has paid the tax in the 1986 tax year shall not exceed 125% of the tax due and payable by that taxpayer facility during the 1986 tax year plus an additional $0.0025 per barrel; except that for a hazardous substance which is directly converted to, and comprises more than 90% by weight of, a non-hazardous final product, the taxpayer facility shall pay no more than 100% of the tax due and payable in the 1986 tax year plus an additional $0.0025 per barrel. For major facilities established by the subdivision of a major facility which existed in 1986, including subsequent owners and operators of the subdivided major facilities, the total aggregated tax due shall not exceed 100% of the tax paid in 1999. For the purposes of applying the 125% of tax due limitation, a successor in interest pursuant to a sale or a reorganization, as defined pursuant to the Internal Revenue Code of 1986, on or before June 1, 2001 shall be entitled to the predecessor taxpayer's limitation. In computing 125% of the tax due and payable by the taxpayer during the 1986 tax year, for taxes due after January 1, 1996 from an owner or operator including the successor in interest pursuant to a sale or a reorganization as defined in this paragraph of one or more major facilities who has continuously since 1986 filed a combined tax return for more than one major facility but who prior to January 1, 1996 has entirely closed and decommissioned one or more of those major facilities, a taxpayer shall include 1986 taxes arising from major facilities which (1) caused the taxpayer to incur a tax liability in 1986, and (2) continue to cause the taxpayer to incur a tax liability during the current tax year. For transfers which are or contain elemental phosphorus, or which are elemental antimony or antimony trioxide sold for use in the manufacture or for the purpose of fire retardants, in computing the 125% of the taxes due and payable by the taxpayer during the 1986 tax year, a taxpayer, which shall include any subsequent owner or operator of a major facility which transfers elemental phosphorus, shall calculate the tax at $0.015 per barrel. For the purposes of this section, "precious metals" means gold, silver, osmium, platinum, palladium, iridium, rhodium, ruthenium and copper. In the event of a major discharge or series of discharges of petroleum or petroleum products resulting in reasonable claims against the fund exceeding the existing balance of the fund, the tax shall be levied at the rate of $0.04 per barrel of petroleum or petroleum products transferred, until the revenue produced by such increased rate equals 150% of the total dollar amount of all pending reasonable claims resulting from the discharge of petroleum or petroleum products; provided, however, that such rate may be set at less than $0.04 per barrel transferred if the administrator determines that the revenue produced by such lower rate will be sufficient to pay outstanding reasonable claims against the fund within one year of such levy. For the purposes of determining the existing balance of the fund, the administrator shall not include any amount in the fund collected from the $0.0025 per barrel increase in the tax imposed pursuant to P.L.1990, c.78 and dedicated for hazardous substance discharge prevention in accordance with paragraph (2) of this subsection.
(b) Notwithstanding any provision of subparagraph (a) of this paragraph to the contrary, in order to qualify for the reduced tax rate for elemental antimony or antimony trioxide sold for use in the manufacture or for the purpose of fire retardants authorized in that subparagraph, the taxpayer shall demonstrate, by December 31 of each year, to the satisfaction of the Department of the Treasury, acting in cooperation with the Department of Environmental Protection, all of the following: (i) that the taxpayer's sales of the hazardous substance constitute, in the calendar year immediately prior to the first calendar year in which the reduced tax rate shall apply, at least 75% of the taxpayer's total annual income in that immediately prior calendar year; (ii) that no other competitor of the taxpayer located in another state is subject to a tax in that other state, with respect to the hazardous substance, that is substantially similar to the tax imposed thereon pursuant to this section; (iii) that the taxpayer otherwise would suffer economic stress unless the benefit from the reduced tax rate is allowed; (iv) that the taxpayer has never filed a successful claim against the New Jersey Spill Compensation Fund; (v) that the taxpayer has never discharged a hazardous substance that required cleanup and removal in accordance with P.L.1976, c.141 (C.58:10-23.11 et seq.); and (vi) that, upon request of the State Treasurer, the taxpayer's accountant or counsel can provide a certified document detailing, with respect to the hazardous substance, the amount of tax that would have been paid each calendar year by the taxpayer had the reduced tax rate not been in effect and the amount that was actually paid each calendar year under the reduced tax rate, so that the State Treasurer may calculate the loss of tax revenue, if any, to the State attributable to the reduced tax rate. If the taxpayer fails to qualify under the provisions of this subparagraph for the reduced tax rate, the taxpayer shall pay, for that calendar year, the tax at the full rate imposed pursuant to subparagraph (a) of this paragraph.
(c) Interest received on moneys in the fund shall be credited to the fund.
(2) An amount of $0.0025 per barrel collected from the proceeds of the tax imposed pursuant to this subsection shall be deposited into the New Jersey Spill Compensation Fund and dedicated for the purposes of P.L.1990, c.78 and for other authorized purposes designed to prevent the discharge of a hazardous substance.
c. (1) Every taxpayer and owner or operator of a public storage terminal for hazardous substances shall on or before the 20th day of the month following the close of each tax period render a return under oath to the director on such forms as may be prescribed by the director indicating the number of barrels of hazardous substances transferred and where appropriate, the fair market value of the hazardous substances transferred to or from the major facility, and at said time the taxpayer shall pay the full amount of the tax due.
(2) Every taxpayer or owner or operator of a major facility or vessel which transfers a hazardous substance, as defined in this act, and who is subject to the tax under subsection a. shall within 20 days after the first such transfer in any fiscal year register with the director on such form as shall be prescribed by him.
(3) Those hazardous substances determined by the Department of Environmental Protection not to be subject to regulation pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) or P.L.1990, c.78 shall not be subject to taxation pursuant to this section.
d. If a return required by this act is not filed, or if a return when filed is incorrect or insufficient in the opinion of the director, the amount of tax due shall be determined by the director from such information as may be available. Notice of such determination shall be given to the taxpayer liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within 30 days after receiving notice of such determination, shall apply to the director for a hearing, or unless the director on his own motion shall redetermine the same. After such hearing the director shall give notice of his determination to the person to whom the tax is assessed.
e. Any taxpayer who shall fail to file his return when due or to pay any tax when the same becomes due, as herein provided, shall be subject to such penalties and interest as provided in the "State Tax Uniform Procedure Law," R.S.54:48-1 et seq. If the Division of Taxation determines that the failure to comply with any provision of this section was excusable under the circumstances, it may remit such part or all of the penalty as shall be appropriate under such circumstances.
f. (1) (Deleted by amendment, P.L.1987, c.76.)
(2) (Deleted by amendment, P.L.1987, c.76.)
g. In addition to the other powers granted to the director in this section, he is hereby authorized and empowered:
(1) To delegate to any officer or employee of his division such of his powers and duties as he may deem necessary to carry out efficiently the provisions of this section, and the person or persons to whom such power has been delegated shall possess and may exercise all of said powers and perform all of the duties delegated by the director;
(2) To prescribe and distribute all necessary forms for the implementation of this section.
h. The tax imposed by this act shall be governed in all respects by the provisions of the "State Uniform Tax Procedure Law," R.S.54:48-1 et seq., except only to the extent that a specific provision of this act may be in conflict therewith.
i. (Deleted by amendment, P.L.1986, c.143.)
a. The Department of Environmental Protection shall compile a list of facilities which, based on all information made available to or collected by the department pursuant to any State or federal law, may have sufficient storage capacity to be classified as a major facility.
b. The department shall transmit this list to the Director of the Division of Taxation in the Department of the Treasury on January 1 of the year next following the enactment of this act and annually thereafter, provided that the department may update the list more frequently as it deems appropriate.
c. The director shall utilize the list compiled by the department to notify the owners or operators of the facilities thereon that they may be liable for the tax levied pursuant to section 9 of P.L. 1976, c. 141 (C. 58:10-23.11h).
d. The owner or operator of a facility so notified by the director shall pay the tax or provide an explanation as to why the facility should not be classified as a major facility.
The department shall compile a list of facilities which, based on all information made available to or collected by the department pursuant to any State or federal law, would be classified as a major facility if storage capacity therefor were set at 5,000 gallons of hazardous substances which are not petroleum or petroleum products.
The New Jersey Spill Compensation Fund is hereby established as a nonlapsing, revolving fund in the department to carry out the purposes of this act. The fund shall be credited with all taxes and penalties related to this act. Interest received on moneys in the fund shall be credited to the fund.
The commissioner shall appoint and supervise an administrator of the fund. The administrator shall be the chief executive of the fund and shall have the following powers and duties:
a. To represent the State in meetings with the alleged discharger and claimants concerning liability for the discharge and the amount of the claims;
b. To determine if boards of arbitration are needed to settle particular claims;
c. To administer boards of arbitration;
d. To certify the amount of claims and names of claimants to the commissioner.
a. Except as otherwise provided by this amendatory and supplementary act, all the functions, powers and duties of the administrator in the Department of the Treasury are continued in the administrator in the Department of Environmental Protection.
b. All files, books, papers, records, equipment and other property of the administrator in the Department of the Treasury are transferred to the administrator in the Department of Environmental Protection.
c. The rules, regulations and orders of the administrator in the Department of the Treasury shall continue with full force as the rules, regulations and orders of the administrator in the Department of Environmental Protection until amended or repealed.
After consultation between the commissioner and the State Treasurer, all relevant appropriations, grants and other moneys available to the administrator in the Department of the Treasury shall be transferred to the administrator in the Department of Environmental Protection and shall remain available for the objects and purposes for which appropriated, subject to any terms, restrictions, limitations or other requirements imposed by federal or State law.
After consultation between the commissioner and State Treasurer, the employees of the administrator, including the administrator, in the Department of the Treasury may be transferred to the Department of Environmental Protection. Nothing in this amendatory and supplementary act shall be construed to deprive these employees of any rights or protection provided them by the civil service, pension or retirement laws of this State.
Whenever in any law, rule, regulation, order, contract, document, judicial or administrative proceeding, or otherwise, reference is made to the administrator in the Department of the Treasury, the same shall be considered to mean and refer to the administrator in the Department of Environmental Protection.
This amendatory and supplementary act shall not affect actions or proceedings, civil or criminal, brought by or against the administrator in the Department of the Treasury and pending on the effective date of this amendatory and supplementary act, but these actions or proceedings may be further prosecuted or defended in the same manner and to the same effect by the administrator in the Department of Environmental Protection.
The transfers directed by this amendatory and supplementary act, except as otherwise provided herein, shall be made in accordance with the "State Agency Transfer Act," P.L. 1971, c. 375 (C. 52:14D-1 et seq.).
In order to effectuate the purposes of this act, the Department of Environmental Protection may call to its assistance and avail itself of the services of any State department, board, commission or agency as may be required.
Claims shall be filed with the administrator not later than one year after the date of discovery of damage. The administrator shall prescribe appropriate forms and procedures for such claims, which shall include a provision requiring the claimant to make a sworn verification of the claim to the best of his knowledge. Any person who knowingly gives or causes to be given any false information as a part of any such claim shall, in addition to any other penalties herein or elsewhere prescribed, be guilty of a misdemeanor. Upon receipt of any claim, the administrator shall as soon as practicable inform all affected parties of the claim.
If a local unit files a claim pursuant to section 12 of P.L.1976, c.141 (C. 58:10-23.11k) seeking to recover cleanup, removal and related costs incurred as a result of an emergency response action, including costs related to the prevention, containment, or mitigation of a discharge, the administrator shall approve or deny the claim for reimbursable costs incurred pursuant to an emergency response action, without regard to the requirements of sections 13, 14, or 15 of P.L.1976, c.141, within 120 days of the filing of a completed claim, including all supportive information or documentation required by the administrator; provided, however, that the local unit shall obtain the approval of the department prior to initiating cleanup or removal, including prevention, containment or mitigation, activities. If the administrator fails to approve, in whole or in part, or deny the claim within the 120-day period, all costs in the claim shall be deemed approved. If the administrator denies the claim or approves only part of the costs claimed, the local unit shall not be precluded from seeking recovery of the costs denied by the administrator under any other provision of statutory law or in accordance with any remedies available under the common law.
The administrator shall attempt to promote and arrange a settlement between the claimant and the person responsible for the discharge. If the source of the discharge can be determined and liability is conceded, the claimant and the alleged discharger may agree to a settlement which shall be final and binding upon the parties and which will waive all recourse against the fund.
If the source of the discharge is unknown or cannot be determined, the claimant and the administrator shall attempt to arrange a settlement of any claim against the fund. The administrator is authorized to enter and certify payment of such settlement subject to such proof and procedures contained in regulations promulgated by the administrator.
a. Boards of arbitration shall be convened by the administrator when persons alleged to have caused the discharge, the administrator or other persons contest the validity or amount of damage claims or cleanup and removal costs presented to the fund for payment. If the source of discharge is not known, any person may contest such claims presented for payment to the fund.
b. In the discretion of the administrator, a board of arbitration may consist of three persons or a single neutral person. In the case of three-person boards, one person shall be chosen by the person alleged to have caused the discharge, one person shall be chosen by the claimant, and one person shall be chosen by the first two to serve as chairman. If the two arbitrators cannot agree upon, select, and name the neutral arbitrator after their appointment, the administrator shall request the American Arbitration Association to utilize its procedures to select the neutral arbitrator. If the source of the discharge is unknown or liability is not conceded, the administrator shall request the American Arbitration Association to utilize its procedures to select the neutral arbitrator and an arbitrator normally selected by the absent or unknown person. Representation by any party on the board shall not be considered as an admission of liability for such discharges. In the case of a one-person board, such neutral arbitrator may, in the discretion of the administrator, be selected by the administrator, by agreement of the affected parties or by utilization of the procedures of the American Arbitration Association; provided, however, that the administrator or any regular employee of the department shall not act as an arbitrator.
(1) Arbitrators shall be designated by their principals within 30 calendar days after the administrator notifies the principals of claims against the fund arising from a discharge.
(2) Should either party fail to name an arbitrator within the designated time, then the administrator shall request the American Arbitration Association to utilize its procedures to select that arbitrator. The two arbitrators thus chosen shall select the neutral arbitrator required by this section.
c. One board of arbitration may be convened to hear and determine all claims arising from or related to a common discharge.
d. The boards shall have the power to order testimony under oath and may subpena attendance and testimony of witnesses and the production of such documentary materials pertinent to the issues presented to the board for determination. Each person appearing before the board shall have the right to counsel.
e. All costs and expenses approved by the administrator attributable to the employment of any arbitrator shall be payable from the fund.
f. All decisions of the boards of arbitration shall be in writing with notification to all appropriate parties, and shall be rendered within 60 calendar days of the final appointment of the board unless the parties otherwise agree in writing to an extension.
g. Determinations made by the board shall be final. Any action for judicial review shall be filed in the Appellate Division of the Superior Court within 30 days of the filing of the decision with the administrator.
h. No sooner than 30 days after the determination of the arbitrators, nor more than 60 days thereafter, the arbitrators shall certify all claims settled or arbitrated to the administrator who, in turn, shall certify the amount of the award and the name of the claimant to the commissioner, who shall direct the administrator to pay the award from the fund. In any case in which the person responsible for the discharge seeks judicial review, reasonable attorney's fees and costs shall be awarded to the claimant if the decision of the board is affirmed.
(1) Costs incurred under section 7 of P.L.1976, c.141 (C.58:10-23.11f);
(2) Damages as defined in section 8 of P.L.1976, c.141 (C.58:10-23.11g);
(3) Such sums as may be necessary for research on the prevention and the effects of discharges of hazardous substances on the environment and public health, on methods of pollution prevention and recycling of hazardous substances, and on the development of improved cleanup, removal, and disposal operations as may be appropriated by the Legislature; provided, however, that such sums, together with sums appropriated pursuant to paragraph (5) of this subsection, shall not exceed, in any fiscal year, an amount equal to the amount of interest credited to the fund during the most recent State fiscal year for which the total amount of such interest income is known;
(4) Such sums as may be necessary for the boards, general administration of the fund, equipment and personnel costs of the department and any other State agency related to the enforcement of P.L.1976, c.141, including any costs incurred by the department pursuant to P.L.1990, c.78 or pursuant to any other law designed to prevent the discharge of a hazardous substance, as may be appropriated by the Legislature;
(5) Such sums as may be appropriated by the Legislature for research and demonstration programs concerning the causes and abatement of ocean pollution; provided, however, that such sums, together with sums appropriated pursuant to paragraph (3) of this subsection, shall not exceed, in any fiscal year, an amount equal to the amount of interest credited to the fund during the most recent State fiscal year for which the total amount of such interest income is known;
(6) Such sums as may be requested by the commissioner, up to a limit of $400,000 per year, to cover the costs associated with the administration of the "Environmental Cleanup Responsibility Act," P.L.1983, c.330 (C.13:1K-6 et seq.);
(7) Costs attributable to the State's obligation to defend and indemnify a contractor pursuant to sections 1 through 11 of P.L.1991, c.373 (C.58:10-23.11f8 et seq.);
(8) Administrative costs incurred by the department to implement the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.), as amended and supplemented by P.L.1990, c.28, on a timely basis, except that the amounts used for this purpose shall not exceed $2,000,000. Any moneys disbursed by the department from the fund for this purpose shall be repaid to the fund in equal amounts from the penalties collected by the department pursuant to P.L.1977, c.74 and P.L. 1990, c.28, in annual installments beginning July 1, 1991 and annually thereafter until the full amount is repaid according to a schedule of repayments determined by the State Treasurer; and
(9) Such sums as may be necessary to reimburse a local unit for costs incurred in an emergency response action taken to prevent, contain, mitigate, clean up or remove a discharge of a hazardous substance.
b. The Treasurer may invest and reinvest any moneys in said fund in legal obligations of the United States, this State or any of its political subdivisions. Any income or interest derived from such investment shall be included in the fund.
Payment of any cleanup costs or damages by the fund arising from a single incident shall be conditioned upon the administrator acquiring by subrogation all rights of the claimant to recovery of such costs or damages from the discharger or other responsible party. The administrator shall then seek satisfaction from the discharger or other responsible party in the Superior Court if the discharger or other responsible party does not reimburse the fund. In any such suit, except as provided by subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g.), the administrator need prove only that an unlawful discharge occurred which was the responsibility of the discharger or other responsible party or that a hazardous substance was removed pursuant to subsection b. of section 7 of P.L.1976, c.141 (C.58:10-23.11f) for which the person was in any way responsible. The administrator is hereby authorized and empowered to compromise and settle the amount sought for costs and damages from the discharger or other responsible party and any penalty arising under this act.
In the event that the total awards for a specific occurrence exceed the current balance of the fund, the immediate award shall be paid on a prorated basis, and all claimants paid on a prorated basis shall be paid, as determined by the administrator, a pro rata share of all funds received by the fund until the total amount of the proven damages is paid to the claimant or claimants. The administrator may also provide through regulation to fix the priority for the payment of claims based on extreme hardship.
Any claims for costs of cleanup, civil penalties or damages by the State, and any claim for damages by any injured person, may be brought directly against the bond, the insurer, or any other person providing evidence of financial responsibility.
The commissioner, the State Treasurer and the director, respectively, are authorized to adopt, amend, repeal, and enforce such rules and regulations pursuant to the Administrative Procedure Act, P.L.1968, c. 410 (C. 52:14B-1 et seq.) as they may deem necessary to accomplish their respective purposes and responsibilities under this act.
(a) bring a civil action in accordance with subsection b. of this section;
(b) levy a civil administrative penalty in accordance with subsection c. of this section; or
(c) bring an action for a civil penalty in accordance with subsection d. of this section.
Use of any remedy specified in this section shall not preclude use of any other remedy. The department may simultaneously pursue administrative and judicial remedies provided in this section.
b. The department may commence a civil action in Superior Court for, singly or in combination:
(1) a temporary or permanent injunction;
(2) the costs of any investigation, cleanup or removal, and for the reasonable costs of preparing and successfully litigating an action under this subsection;
(3) the cost of restoring, repairing, or replacing real or personal property damaged or destroyed by a discharge, any income lost from the time the property is damaged to the time it is restored, repaired or replaced, and any reduction in value of the property caused by the discharge by comparison with its value prior thereto;
(4) the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge; and
(5) any other costs incurred by the department pursuant to P.L.1976, c.141.
Compensatory damages for damages awarded to a person other than the State shall be paid to the person injured by the discharge.
c. (1) The department may assess a civil administrative penalty of not more than $50,000 for each violation, and each day of violation shall constitute an additional, separate and distinct violation. A civil administrative penalty shall not be levied until a violator has been notified by certified mail or personal service of:
(a) the statutory or regulatory basis of the violation;
(b) the specific citation of the act or omission constituting the violation;
(c) the amount of the civil administrative penalty to be imposed;
(d) the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.
(2) (a) A violator shall have 20 calendar days following receipt of notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all departmental procedures shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the department shall issue a final order assessing the amount of the civil administrative penalty specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of assessment of a civil administrative penalty shall become a final order on the 21st calendar day following receipt of the notice by the violator. If the department denies a hearing request, the notice of denial shall become a final order upon receipt of the notice by the violator.
(b) A civil administrative penalty may be settled by the department on such terms and conditions as the department may determine.
(c) Payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement remedy in connection with the violation for which the penalty was levied.
(3) If a civil administrative penalty imposed pursuant to this section is not paid within 30 days of the date that the penalty is due and owing, and the penalty is not contested by the person against whom the penalty has been assessed, or the person fails to make a payment pursuant to a payment schedule entered into with the department, an interest charge shall accrue on the amount of the penalty from the 30th day that amount was due and owing. In the case of an appeal of a civil administrative penalty, if the amount of the penalty is upheld, in whole or in part, the rate of interest shall be calculated on that amount as of the 30th day from the date the amount was due and owing under the administrative order. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
(4) The department may assess and recover, by civil administrative order, the costs of any investigation, cleanup or removal, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty pursuant to this subsection. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.
d. Any person who violates a provision of P.L.1976, c.141 (C.58:10-23.11 et seq.), or a court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject to a civil penalty not to exceed $50,000.00 per day for each violation, and each day's continuance of the violation shall constitute a separate violation. Any penalty incurred under this subsection may be recovered with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) in the Superior Court or a municipal court. The Superior Court and the municipal courts shall have jurisdiction to impose a civil penalty for a violation of P.L.1976, c.141 (C.58:10-23.11 et seq.) pursuant to this subsection and in accordance with the procedures set forth in the "Penalty Enforcement Law of 1999."
e. All conveyances used or intended for use in the willful discharge of any hazardous substance are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).
In addition to the penalties, charges, or other liabilities imposed pursuant to the provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), any person whose intentional or unintentional act or omission proximately results in an unauthorized releasing, spilling, pumping, pouring, emitting, emptying, or dumping of 100,000 gallons or more of a hazardous substance, or combination of hazardous substances, into the waters or onto the lands of the State, or entering the lands or waters of the State from a discharge occurring outside the jurisdiction of the State, is liable to a civil administrative penalty or civil penalty of not more than $10,000,000, to be collected in accordance with the procedures set forth in section 22 of P.L.1976, c.141 (C.58:10-23.11u). The penalty provisions of this section are in addition to assessments authorized by law for costs incurred by the State or local governmental agencies in the cleanup and removal of an unauthorized release or discharge, including supervision or oversight of the violator's cleanup activities, or compensation or damages recoverable for the loss of wildlife or destruction of the environment, and the restoration thereof. In assessing a penalty pursuant to this section, the department shall take into account the circumstances of the discharge, the conduct and culpability of the discharger, or both, prior to, during, and after the discharge, and the extent of the harm resulting from the discharge to persons, property, wildlife, or natural resources.
The provisions of this section shall not apply to any discharge which is contained in a containment area or areas approved by, or otherwise meeting the requirements of, the department, or which containment area is designed to, and reasonably capable of preventing the hazardous substance from entering the waters of the State or otherwise entering the lands of the State, except where 100,000 or more gallons of one or more hazardous substances escape beyond the containment area.
Nothing in this act shall be deemed to preclude the pursuit of any other civil or injunctive remedy by any person. The remedies provided in this act are in addition to those provided by existing statutory or common law, but no person who receives compensation for damages or cleanup costs pursuant to any other State or Federal law shall be permitted to receive compensation for the same damages or cleanup costs under this act.
If any section, subsection, provision, clause or portion of this act is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this act shall not be affected thereby.
This act, being necessary for the general health, safety, and welfare of the people of this State, shall be liberally construed to effect its purposes.
The commissioner shall make an annual report to the Legislature and Governor, which shall describe the quality and quantity of spills of hazardous substances, the costs and damages paid by and recovered for the fund, and the economic and environmental impacts on the State as a result of the administration of this act.
The department shall annually submit a written report to the Senate Energy and Environment Committee and to the Assembly Environmental Quality Committee, or their successors, which shall include the information required pursuant to section 26 of P.L. 1976, c. 141 (C. 58:10-23.11y) as well as the list transmitted to the Director of the Division of Taxation in the Department of the Treasury pursuant to section 3 of this amendatory and supplementary act and the list compiled by the department pursuant to section 4 of this amendatory and supplementary act.
If the United States Congress enacts legislation providing compensation for the discharge of petroleum and hazardous products, the commissioner shall determine to what degree that legislation provides the needed protection for our citizens, businesses and environment and shall make the appropriate recommendations to the Legislature for amendments to this act.
The Legislature finds and declares that the incidence of hazardous waste discharges into the environment is increasing at an alarming rate; that public concern over the potential adverse health effects of exposure to such waste is growing; that estimation of risk to a community of exposure to toxic chemicals and the determination of any health consequences that may result from the exposure require sophisticated and costly biomedical and epidemiological investigation; that there is currently no Federal, State, or local program that provides the medical or financial assistance required to protect potential victims; and that a State program to conduct diagnostic examination of victims of exposure, evaluate the potential adverse health effects on affected communities of the exposure, and plan to reduce the risk of environmental contamination in areas with high potential for hazardous discharges is therefore necessary and appropriate.
There is established within the Division of Epidemiology and Disease Control in the Department of Health a Hazardous Waste Health Care Task Force. It shall be the duty of this task force to develop and implement a program to classify and evaluate the threats to health posed by exposure to hazardous discharges, to determine those at greatest risk, to conduct such initial diagnostic testing as may be necessary or appropriate to identify potential victims of any hazardous discharge, and to plan to reduce the dangers to communities at high risk.
The Commissioner of Health shall, within 45 days of the effective date of this supplementary act and in accordance with the provisions of the "Administrative Procedure Act" (P.L.1968, c. 410; C. 52:14B-1 et seq.) adopt rules and regulations necessary to carry out the purposes of this supplementary act.
As used in this act:
a. "Department" means the Department of Environmental Protection.
b. "Hazardous discharge" means a discharge of hazardous substances as defined in section 3 of P.L.1976, c. 141 (C. 58:10-23.11b) or a hazardous discharge as defined in P.L.1981, c. 275.
The department shall prepare and adopt a master list as follows, the provisions of the "Administrative Procedure Act," P.L.1968, c. 410 (C. 52:14B-1 et seq.) or any other law to the contrary notwithstanding:
a. Within 6 months of the effective date of this act, the department shall prepare a proposed master list and make it available to the governing body of each municipality in which there is located a hazardous discharge site, and to all other interested persons.
b. Within 8 months of the effective date of this act, the department shall conduct public hearings in the several geographic areas of the State on the proposed master list. Notice of these hearings shall be published at least 30 days in advance of the hearing in at least two newspapers circulating in the specific geographic area where the hearing will be held.
c. Within 1 year of the effective date of this act, the department shall consider all the testimony presented at the public hearings, make such revisions to the proposed master list as it deems necessary or appropriate, and adopt the master list.
Any governing body of a municipality, which, after receiving approval from the department, removes and cleans up, or causes to be removed and cleaned up, a hazardous discharge site included on the master list prepared and adopted by the department pursuant to this act, shall be reimbursed from appropriate funding sources for the costs of that cleanup and removal, as established pursuant to the provisions of section 5 of this act. The reimbursement shall be made when funds are made available and, pursuant to the ranking of the hazardous discharge sites on the master list, the department would have acted to clean up and remove the hazardous discharge.
a. The governing body of any municipality which intends to remove or clean up a hazardous discharge site included on the master list shall submit to the department a plan for the cleanup and removal, which shall include a written estimate of the cost of the cleanup or removal.
b. The department shall, within 30 days of the receipt of the plan, approve, modify or disapprove the plan.
The Legislature finds and declares that:
a. The recognition of the threat of serious, and in some cases irreversible, environmental pollution by toxic chemicals stored, legally or otherwise, at various sites around the State has prompted the recent need for a systematic and consistent approach to the detoxification of those sites;
b. Pioneering efforts in responding to those environmental threats have been undertaken by agencies of this State thereby adding to the store of knowledge and experience necessary for prompt and efficient hazardous discharge response;
c. Serious allegations have been made that efforts to detoxify sites of hazardous discharge have been fraught with ineffective administration, resulting in less than the most cost effective approach to the cleanup of those sites, and the waste of funds made precious by scarcity and the large number of sites needing remedial action;
d. To assure the adequate and most cost effective response to chemical contamination, it is altogether fitting and proper to utilize the expertise of industry, academia and environmentally concerned citizens to study prior cleanup efforts, identify programmatic inefficiencies and ineffectiveness, and to recommend a contingency response plan which shall serve as the basis for a Statewide master plan for the cleanup of chemical contamination.
As used in this act:
a. "Department" means the Department of Environmental Protection;
b. "Hazardous discharge" means a discharge of hazardous substances as defined in subsection h. of section 3 of P.L.1976, c. 141 (C. 58:10-23.11b);
c. "Sites of chemical contamination" means abandoned or retired sites of hazardous substance disposal posing present or imminent threats to public health, property or the natural environment, the owners of which are not identifiable or are judgment proof.
This act shall be known and may be cited as the "Clean Ocean Act."
The Legislature finds and determines that the ocean off the coast of the State is being used increasingly for the disposal of wastes, including sewage sludge, industrial wastes and dredged spoils; that ocean-dumped wastes contain materials which may have adverse effects on the public health, safety, and welfare; that many of these materials are toxic to human and marine life, and are damaging to the fish population and the food chain supporting all life including man, as well as to other valuable natural and economic resources; and that therefore the State must regulate and control this practice and encourage the development and utilization of advanced methods of waste disposal which do not utilize the ocean as the repository for harmful materials.
For the purposes of this act unless the context clearly indicates another meaning:
a. "Commissioner" means the Commissioner of Environmental Protection;
b. "Department" means the Department of Environmental Protection;
c. "Vessel" means every description of watercraft or any other artificial contrivance used, or capable of being used, as a means of transportation on or into water;
d. "Person" means and shall include corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, and shall also include all political subdivisions of this State, and any other state, or any agencies or instrumentalities thereof.
The commissioner shall have the power to formulate and promulgate, amend and repeal rules and regulations preventing, conditioning and controlling the loading of a vessel within the State with materials of any composition whatsoever and the handling of such materials which if disposed of at sea cause, or may tend to cause, adverse effects on the waters of the State.
a. The commissioner may by rule or regulation require that the person responsible for the loading of a vessel or the handling of materials of any composition whatsoever which are to be disposed of at sea first obtain a permit.
The department may, in accordance with a fee schedule adopted as a rule or regulation, establish and charge fees for any of the services it performs in connection with this act, including the issuance of permits, which fees shall be annual or periodical as the department shall deem. The fees charged by the department pursuant to this section shall not be less than $100.00 nor more than $1,500.00 based on criteria contained in the fee schedule.
b. The permit required by this section may be conditioned upon compliance with all rules and regulations adopted pursuant to this act.
The powers, duties and functions vested in the department under the provisions of this act shall not be construed to limit in any manner the powers, duties and functions vested therein or in any person under any other provisions of law or any civil or criminal remedies now or hereafter available.
If any provision of this act or the application thereof to any person or circumstances is held invalid, the remainder of the act and the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
This act shall be liberally construed to effectuate the purpose and intent thereof.
a. There is established in the Department of Environmental Protection a fund to be known as the "Hazardous Discharge Site Cleanup Fund." All interest earned on moneys in the fund shall be credited to the fund. Moneys in the fund shall be used by the Department of Environmental Protection for the purposes of preparing feasibility studies, engineering designs, and undertaking other work necessary to the cleanup or mitigation of hazardous discharge sites in this State included on the National Priorities List of hazardous discharge sites adopted by the federal Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub.L. 96-510 (42 U.S.C. s. 9601 et seq.) or other hazardous discharge sites approved by the department.
b. Any monies received by the department from the federal government or from responsible parties as reimbursement for costs incurred by the department in connection with the cleanup of a hazardous discharge site on the federal National Priorities List shall be deposited by the department for additional hazardous discharge site cleanup activities.
As used in this article:
"Commission" means the state commissioners of water supply appointed under chapter one hundred and eighty-nine, laws of one thousand eight hundred and eighty-two, and their successors however appointed or designated.
"Fresh water" means any fresh water stream, spring, river, or the tributaries thereof, or the waters of any lake, pond, storage reservoir or conduit from which water is drawn, or which is used for furnishing a public water supply.
"Pipe line" means any conduit through which petroleum or any of its products is conveyed or intended to be conveyed.
No pipe line shall be constructed across any fresh water streams of this state except in the manner to be approved by the commission.
Any pipe line so constructed that there is danger of the escape of its contents into any fresh water streams of this state shall be reconstructed or removed in accordance with the provisions of this article.
The commission, if in its opinion any pipe line is so constructed that there is danger of the escape of the contents thereof into any fresh water of this state, shall give notice in writing of such opinion to the owners or users of the pipe line, specifying the location and extent of the portion thereof which, in its opinion, is so constructed, and naming a time and place to hear the owners or users on the subject. This notice may be served on a corporation by service on any of its officers, agents, or servants.
If, after having afforded the owners or users of such pipe line an opportunity to be heard on such notice, the commission decides that the portion of the pipe line specified in the notice is so constructed that there is danger of the escape of its contents into any fresh water of this state, it shall give notice of its decision in like manner as provided for the giving of notice in section 58:10-27 of this title.
Within fifteen days after service of notice of the decision, the owners or users of such pipe line shall submit to the commission written specifications for the reconstruction of the portion of the pipe line specified in the decision. If the commission approves the same, it shall give like notice of its approval to such owners or users. If the commission does not approve the same, it shall specify by like notice the manner of reconstruction which it does approve, and said portion of such pipe line shall thereupon be reconstructed by the owners or users thereof, at their own expense, in the manner approved by the commission.
The reconstruction, in the manner approved by the commission, of the portion of such pipe line specified in its decision, shall be begun within thirty days after service of the notice required by section 58:10-29 of this title, and shall be continued with such dispatch as shall seem reasonable to the commission. If such reconstruction is not begun and continued as herein provided, the commission shall remove, or cause to be removed, the portion of the pipe line specified in its decision, or any part thereof. The cost and expense of such removal shall be recoverable at law from the owners or users of the pipe line in any court of competent jurisdiction by the commission in the name of the state.
For the purpose of removing or causing the removal of the pipe line as aforesaid, the commission may enter upon any lands, bridges or structures and shall not be liable for any damage done thereto by such removal, nor for any damage resulting from such removal, but the damages shall be recoverable at law in any court of competent jurisdiction from the owners or users of the pipe line.
Any order, decision, judgment or proceeding of the commission under the provisions of this article may be reviewed by the Superior Court by a proceeding in lieu of prerogative writ, and the court may reverse or modify such order, decision, judgment or proceeding in such manner as it shall deem reasonable and just.
In any case where, by the rupture or leakage of a pipe line, injury is done to any fresh water of this State, the commission may apply directly to any court of competent jurisdiction for an immediate remedy, as it may deem advisable.
Any owner or user of a pipe line who shall construct or maintain the same across any fresh water stream of this state, except in the manner approved by the commission, shall be liable to a penalty of five hundred dollars for each day such owner or user shall delay reconstructing the same in the manner approved by the commission according to the provisions of this article. Such penalty shall be recoverable at law from the owner or user of the pipe line in any court of competent jurisdiction by the commission in the name of the state. The owners of pipe lines constructed prior to May ninth, one thousand eight hundred and eighty-four, shall not be liable to said penalty until after due notice and hearing as provided in this article.
Nothing shall be so construed in this article as to relieve the owners or users of pipe lines from liability for damages which may ensue by reason of breakage or leakage, notwithstanding such pipes were constructed according to the direction and with the approval of the commission.
No person shall drill, bore, drive, dig, or otherwise conduct any operation for the purpose of obtaining access to a pocket or other underground area or place for the purpose of storing natural or artificial gas or petroleum products and their derivatives, unless a permit for such operation, construction and storage shall be first obtained from the Commissioner of the Department of Conservation and Economic Development. Nothing in this act shall be construed to apply to the installation or maintenance of underground tanks or vessels commonly used to store such products.
The said commissioner shall prescribe rules and regulations to effectuate the provisions of this act and any such permit may contain such restrictions as the said commissioner shall determine to be necessary in the public interest to protect the waters of the State, including subsurface and percolating waters. Any person who shall violate the provisions of this act shall be guilty of a misdemeanor and the provisions of this act shall be enforceable by action or other proceeding in the Superior Court of New Jersey to obtain relief in the nature of injunctive relief, both restraining and mandatory, and also by action or proceeding in said court in lieu of prerogative writ.
Every application for a permit shall be accompanied by not less than two copies of an accurate map prepared by a competent engineer or geologist showing the location, extent and depth of the proposed storage place and of all wells drilled or proposed to be drilled to such storage place. A copy of the map shall be sent to the State Geologist and to the Water Policy and Supply Council and they shall, after consideration thereof, advise the Commissioner of the Department of Conservation and Economic Development in relation thereto, by a written report as to the presence or absence of danger of pollution, contamination, diversion or depletion of subsurface and percolating waters. The commissioner may take the testimony of such other persons as he may determine. The commissioner shall determine whether the granting of any such application would be likely to endanger the public safety, health and welfare, and, in accordance with his determination and subject to the provisions of this act, grant or deny the application.
The provisions of this act shall be applicable to any operation of drilling, boring, driving or digging heretofore commenced, as well as to any such operation hereafter commenced.
As used in this act:
"Department" means the Department of Environmental Protection;
"Federal act" means the "Hazardous Liquid Pipeline Safety Act of 1979," 49 U.S.C. s.2001 et seq.;
"Hazardous liquid" means a hazardous liquid as defined pursuant to the federal act;
"Intrastate pipeline facilities" means pipeline facilities that a state may regulate pursuant to the federal act;
"Leak detection system" means a system consisting of sensing devices or monitoring devices capable of detecting leaks in pipeline facilities and designed to automatically shut off flow or initiate procedures to shut off flow in a pipeline facility if a leak is detected;
"Pipeline facility" means new and existing pipe, rights-of-way, and any equipment, facility, or building used or intended for use in the transportation of hazardous liquids that are intrastate;
"Secondary containment" means an additional layer of impervious material creating a space around a pipeline facility wherein a leak of a hazardous liquid from a pipeline facility may be detected before it enters the environment;
"Transportation of hazardous liquids" means the movement of hazardous liquids by pipeline, or their storage incidental to that movement.
Within 18 months of the effective date of this act, the department shall adopt regulations requiring that the owner or operator of each pipeline facility register with the department. Every owner or operator of a pipeline facility shall register the pipeline facility with the department within six months of the adoption of the registration regulations, and shall renew the registration every five years. The registration and renewal shall be on forms prescribed by the department and shall include at least the following information:
a. The business name, address, and telephone number, including an operations emergency telephone number, of the operator;
b. An accurate map or maps, along with any appropriate geographic description, showing the location of each pipeline facility of that owner or operator in the State and the location at which that pipeline facility leaves the State;
c. A description of the characteristics of the owner's or operator's pipeline facilities within the State;
d. A description of all products transported through the owner's or operator's pipeline facility within the State;
e. An inventory with appropriate information with respect to all types of pipe used for the transmission of hazardous liquids in the owner's or operator's pipeline facility, along with additional information, including the repair, maintenance, and leak history of the pipeline facility. This inventory shall exclude equipment associated only with the pipeline pumps or storage facilities; and
f. Any other information the department considers useful and necessary.
Within 36 months of the effective date of this act, the department shall complete a study on the feasibility and necessity, if any, of the following actions:
a. Adopting the pipeline facility safety standards regulations adopted by the United States Department of Transportation pursuant to the federal act, and of applying to the Secretary of the United States Department of Transportation for certification pursuant to the federal act for the regulation of intrastate pipeline facilities;
b. Adopting additional standards for accident and safety reporting, design requirements, construction standards, hydrostatic testing, operation and maintenance, and other standards more stringent than those adopted pursuant to the federal act, if otherwise compatible with the standards in the federal act;
c. Requiring the retrofitting of pipelines with leak detection systems based upon best available technology, industry standards, or federal requirements, whichever may be most stringent;
d. Requiring standards for the pressure, flow, or other applicable variances at which leak detection systems detect and indicate leaks, and maintenance, repair, and operational requirements for leak detection systems;
e. Requiring the removal or environmentally sound closure of abandoned pipeline facilities;
f. Requiring periodic practice drills of emergency leak response procedures and the submittal of reports thereon;
g. Requiring replacement pipeline facilities to be constructed, to the extent practicable, in a manner so as to accommodate the passage through those pipeline facilities of instrumented internal inspection devices commonly referred to as "smart pigs"; and
h. Requiring secondary containment for all underwater pipeline facilities.
Within three months of the completion of the study required pursuant to section 3 of this act, the department shall submit to the Governor and the Legislature a written report summarizing the results of the study, including recommendations for administrative or legislative action.
The provisions of this act shall apply to intrastate pipeline facilities and the transportation of hazardous liquids associated with those facilities. This act shall not apply to the transportation of a hazardous liquid through onshore production or flow lines, refining or manufacturing facilities, storage terminals, or inplant piping systems associated with those facilities or terminals that are within the boundaries of a pipeline facility.
This act shall be known and may be cited as the "Water Pollution Control Act."
The Legislature finds and declares that pollution of the ground and surface waters of this State continues to endanger public health; to threaten fish and aquatic life, scenic and ecological values; and to limit the domestic, municipal, recreational, industrial, agricultural and other uses of water, even though a significant pollution abatement effort has been made in recent years. It is the policy of this State to restore, enhance and maintain the chemical, physical, and biological integrity of its waters, to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water.
The Legislature further finds and declares that the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500; 33 U.S.C. 1251 et seq.) establishes a permit system to regulate discharges of pollutants and provides that permits for this purpose will be issued by the Federal Government or by states with adequate authority and programs to implement the regulatory provisions of that act. It is in the interest of the people of this State to minimize direct regulation by the Federal Government of wastewater dischargers by enacting legislation which will continue and extend the powers and responsibilities of the Department of Environmental Protection for administering the State's water pollution control program, so that the State may be enabled to implement the permit system required by the Federal Act.
a. "Administrator" means the Administrator of the United States Environmental Protection Agency or his authorized representative;
b. "Areawide plan" means any plan prepared pursuant to section 208 of the Federal Act;
c. "Commissioner" means the Commissioner of Environmental Protection or his authorized representative;
d. "Department" means the Department of Environmental Protection;
e. "Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a pollutant into the waters of the State, onto land or into wells from which it might flow or drain into said waters or into waters or onto lands outside the jurisdiction of the State, which pollutant enters the waters of the State. "Discharge" includes the release of any pollutant into a municipal treatment works;
f. "Effluent limitation" means any restriction on quantities, quality, rates and concentration of chemical, physical, thermal, biological, and other constituents of pollutants established by permit, or imposed as an interim enforcement limit pursuant to an administrative order, including an administrative consent order;
g. "Federal Act" means the "Federal Water Pollution Control Act Amendments of 1972" (Public Law 92-500; 33 U.S.C. s.1251 et seq.);
h. "Municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13;
i. "National Pollutant Discharge Elimination System" or "NPDES" means the national system for the issuance of permits under the Federal Act;
j. "New Jersey Pollutant Discharge Elimination System" or "NJPDES" means the New Jersey system for the issuance of permits under this act;
k. "Permit" means a NJPDES permit issued pursuant to section 6 of this act. "Permit" includes a letter of agreement entered into between a delegated local agency and a user of its municipal treatment works, setting effluent limitations and other conditions on the user of the agency's municipal treatment works;
l. "Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State and any state or interstate agency. "Person" shall also mean any responsible corporate official for the purpose of enforcement action under section 10 of this act;
m. "Point source" means any discernible, confined and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged;
n. "Pollutant" means any dredged spoil, solid waste, incinerator residue, sewage, garbage, refuse, oil, grease, sewage sludge, munitions, chemical wastes, biological materials, radioactive substance, thermal waste, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal or agricultural waste or other residue discharged into the waters of the State. "Pollutant" includes both hazardous and nonhazardous pollutants;
o. "Pretreatment standards" means any restriction on quantities, quality, rates, or concentrations of pollutants discharged into municipal or privately owned treatment works adopted pursuant to P.L.1972, c.42 (C.58:11-49 et seq.);
p. "Schedule of compliance" means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with water quality standards, an effluent limitation or other limitation, prohibition or standard;
q. "Substantial modification of a permit" means any significant change in any effluent limitation, schedule of compliance, compliance monitoring requirement, or any other provision in any permit which permits, allows, or requires more or less stringent or more or less timely compliance by the permittee;
r. "Toxic pollutant" means any pollutant identified pursuant to the Federal Act, or any pollutant or combination of pollutants, including disease causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly or indirectly by ingestion through food chains, will, on the basis of information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformation, in such organisms or their offspring;
s. "Treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems;
t. "Waters of the State" means the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction;
u. "Hazardous pollutant" means:
(1) Any toxic pollutant;
(2) Any substance regulated as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act, Pub.L.92-516 (7 U.S.C. s.136 et seq.);
(3) Any substance the use or manufacture of which is prohibited under the federal Toxic Substances Control Act, Pub.L.94-469 (15 U.S.C. s.2601 et seq.);
(4) Any substance identified as a known carcinogen by the International Agency for Research on Cancer;
(5) Any hazardous waste as designated pursuant to section 3 of P.L.1981, c.279 (C.13:1E-51) or the "Resource Conservation and Recovery Act," Pub.L.94-580 (42 U.S.C. s.6901 et seq.); or
(6) Any hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b);
v. "Serious violation" means an exceedance of an effluent limitation for a discharge point source set forth in a permit, administrative order, or administrative consent agreement, including interim enforcement limits, by 20 percent or more for a hazardous pollutant, or by 40 percent or more for a nonhazardous pollutant, calculated on the basis of the monthly average for a pollutant for which the effluent limitation is expressed as a monthly average, or, in the case of an effluent limitation expressed as a daily maximum and without a monthly average, on the basis of the monthly average of all maximum daily test results for that pollutant in any month; in the case of an effluent limitation for a pollutant that is not measured by mass or concentration, the department shall prescribe an equivalent exceedance factor therefor. The department may utilize, on a case-by-case basis, a more stringent factor of exceedance to determine a serious violation if the department states the specific reasons therefor, which may include the potential for harm to human health or the environment. "Serious violation" shall not include a violation of a permit limitation for color;
w. "Significant noncomplier" means any person who commits a serious violation for the same hazardous pollutant or the same nonhazardous pollutant, at the same discharge point source, in any two months of any six-month period, or who exceeds the monthly average or, in a case of a pollutant for which no monthly average has been established, the monthly average of the daily maximums for an effluent limitation for the same pollutant at the same discharge point source by any amount in any four months of any six-month period, or who fails to submit a completed discharge monitoring report in any two months of any six-month period. The department may utilize, on a case-by-case basis, a more stringent frequency or factor of exceedance to determine a significant noncomplier, if the department states the specific reasons therefor, which may include the potential for harm to human health or the environment. A local agency shall not be deemed a "significant noncomplier" due to an exceedance of an effluent limitation established in a permit for flow;
x. "Local agency" means a political subdivision of the State, or an agency or instrumentality thereof, that owns or operates a municipal treatment works;
y. "Delegated local agency" means a local agency with an industrial pretreatment program approved by the department;
z. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with an effluent limitation because of an event beyond the reasonable control of the permittee, including fire, riot, sabotage, or a flood, storm event, natural cause, or other act of God, or other similar circumstance, which is the cause of the violation. "Upset" also includes noncompliance consequent to the performance of maintenance operations for which a prior exception has been granted by the department or a delegated local agency;
aa. "Bypass" means the anticipated or unanticipated intentional diversion of waste streams from any portion of a treatment works;
bb. "Major facility" means any facility or activity classified as such by the Administrator of the United States Environmental Protection Agency, or his representative, in conjunction with the department, and includes industrial facilities and municipal treatment works;
cc. "Significant indirect user" means a discharger of industrial or other pollutants into a municipal treatment works, as defined by the department, including, but not limited to, industrial dischargers, but excluding the collection system of a municipal treatment works;
dd. "Violation of this act" means a violation of any provisions of this act, and shall include a violation of any rule or regulation, water quality standard, effluent limitation or other condition of a permit, or order adopted, issued, or entered into pursuant to this act;
ee. "Aquaculture" means the propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities to intervene in the rearing process to increase production such as stocking, feeding, transplanting, and providing for protection from predators. "Aquaculture"shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation;
ff. "Aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.
The commissioner shall have power to prepare, adopt, amend, repeal and enforce, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), reasonable codes, rules and regulations to prevent, control or abate water pollution and to carry out the intent of this act, either throughout the State or in certain areas of the State affected by a particular water pollution problem. Such codes, rules and regulations may include, but shall not be limited to, provisions concerning:
a. The storage of any liquid or solid pollutant in a manner designed to keep it from entering the waters of the State;
b. The prior submission and approval of plans and specifications for the construction or modification of any treatment work or part thereof;
c. The classification of the surface and ground waters of the State and the determination of water quality standards for each such classification;
d. The limitation of effluents, including toxic effluents as indicated herein;
e. The determination of pretreatment standards;
f. The establishment of user charges and cost recovery requirements in conformance with the Federal Act;
g. The establishment of a civil penalty policy governing the uniform assessment of civil penalties in accordance with section 10 of P.L.1977, c.74 (C.58:10A-10).
a. Exercise general supervision of the administration and enforcement of this act and all rules, regulations and orders promulgated hereunder;
b. Assess compliance of a discharger with applicable requirements of State and federal law pertaining to the control of pollutant discharges and the protection of the environment and, also, to issue certification with respect thereto as required by section 401 of the federal act;
c. Assess compliance of a person with applicable requirements of State and federal law pertaining to the control of the discharge of dredged and fill material into the waters of the State and the protection of the environment and, also, to issue, deny, modify, suspend, or revoke permits with respect thereto as required by section 404 of the "Federal Water Pollution Control Act Amendments of 1972," as amended by the "Clean Water Act of 1977," (33 U.S.C.s.1344), and implementing regulations;
d. Advise, consult, and cooperate with other agencies of the State, the federal government, other states and interstate agencies, including the State Soil Conservation Committee, and with affected groups, political subdivisions and industries in furtherance of the purposes of this act;
e. Administer State and federal grants and other forms of financial assistance to municipalities, counties and other political subdivisions, or any recipient approved by the commissioner according to terms and conditions approved by him in order to meet the goals and objectives of this act. The department shall establish, charge and collect reasonable loan origination and annual administrative fees, which shall be based upon, and shall not exceed the estimated cost of processing, monitoring and administering the financial assistance programs. Said fees shall be deposited in a separate fund, administered by the department, and the funds used for the sole purpose of administering the financial assistance programs authorized and established by State law, including, but not limited to, the costs of administering the "Wastewater Treatment Fund - State Revolving Fund Accounts" established pursuant to P.L.1988, c.133.
b. It shall be unlawful for any person to build, install, modify or operate any facility for the collection, treatment or discharge of any pollutant, except after approval by the department pursuant to regulations adopted by the commissioner.
c. The commissioner is hereby authorized to grant, deny, modify, suspend, revoke, and reissue NJPDES permits in accordance with P.L.1977, c.74, and with regulations to be adopted by him. The commissioner may reissue, with or without modifications, an NPDES permit duly issued by the federal government as the NJPDES permit required by P.L.1977, c.74.
d. The commissioner may, by regulation, exempt the following categories of discharge, in whole or in part, from the requirement of obtaining a permit under P.L.1977, c.74; provided, however, that an exemption afforded under this section shall not limit the civil or criminal liability of any discharger nor exempt any discharger from approval or permit requirements under any other provision of State or federal law:
(1) Additions of sewage, industrial wastes or other materials into a publicly owned sewage treatment works which is regulated by pretreatment standards;
(2) Discharges of any pollutant from a marine vessel or other discharges incidental to the normal operation of marine vessels;
(3) Discharges from septic tanks, or other individual waste disposal systems, sanitary landfills, and other means of land disposal of wastes;
(4) Discharges of dredged or fill materials into waters for which the State could not be authorized to administer the section 404 program under section 404(g) of the "Federal Water Pollution Control Act Amendments of 1972," as amended by the "Clean Water Act of 1977" (33 U.S.C. s.1344) and implementing regulations;
(5) Nonpoint source discharges;
(6) Uncontrolled nonpoint source discharges composed entirely of storm water runoff when these discharges are uncontaminated by any industrial or commercial activity unless these particular storm water runoff discharges have been identified by the administrator or the department as a significant contributor of pollution;
(7) Discharges conforming to a national contingency plan for removal of oil and hazardous substances, published pursuant to section 311(c)(2) of the Federal Act;
(8) Discharges resulting from agriculture, including aquaculture, activities.
e. The commissioner shall not issue any permit for:
(1) The discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste into the waters of this State;
(2) Any discharge which the United States Secretary of the Army, acting through the Chief of Engineers, finds would substantially impair anchorage or navigation;
(3) Any discharge to which the administrator has objected in writing pursuant to the Federal Act;
(4) Any discharge which conflicts with an areawide plan adopted pursuant to law.
f. A permit issued by the department or a delegated local agency pursuant to P.L.1977, c.74 shall require the permittee:
(1) To achieve effluent limitations based upon guidelines or standards established pursuant to the Federal Act or to P.L.1977, c.74, together with such further discharge restrictions and safeguards against unauthorized discharge as may be necessary to meet water quality standards, areawide plans adopted pursuant to law, or other legally applicable requirements;
(2) Where appropriate, to meet schedules for compliance with the terms of the permit and interim deadlines for progress or reports of progress towards compliance;
(3) To insure that all discharges are consistent at all times with the terms and conditions of the permit and that no pollutant will be discharged more frequently than authorized or at a level in excess of that which is authorized by the permit;
(4) To submit application for a new permit in the event of any contemplated facility expansion or process modification that would result in new or increased discharges or, if these would not violate effluent limitations or other restrictions specified in the permit, to notify the commissioner, or delegated local agency, of such new or increased discharges;
(5) To install, use and maintain such monitoring equipment and methods, to sample in accordance with such methods, to maintain and retain such records of information from monitoring activities, and to submit to the commissioner, or to the delegated local agency, reports of monitoring results for surface waters, as may be stipulated in the permit, or required by the commissioner or delegated local agency pursuant to paragraph (9) of this subsection, or as the commissioner or the delegated local agency may prescribe for ground water. Significant indirect users, major industrial dischargers, and local agencies, other than those discharging only stormwater or noncontact cooling water, shall, however, report their monitoring results for discharges to surface waters monthly to the commissioner, or the delegated local agency. Discharge monitoring reports for discharges to surface waters shall be signed by the highest ranking official having day-to-day managerial and operational responsibilities for the discharging facility, who may, in his absence, authorize another responsible high ranking official to sign a monthly monitoring report if a report is required to be filed during that period of time. The highest ranking official shall, however, be liable in all instances for the accuracy of all the information provided in the monitoring report; provided, however, that the highest ranking official may file, within seven days of his return, amendments to the monitoring report to which he was not a signatory. The highest ranking official having day-to-day managerial and operational responsibilities for the discharging facility of a local agency shall be the highest ranking licensed operator of the municipal treatment works in those instances where a licensed operator is required by law to operate the facility. In those instances where a local agency has contracted with another entity to operate a municipal treatment works, the highest ranking official who signs the discharge monitoring report shall be an employee of the contract operator and not of the local agency. Notwithstanding that an employee of a contract operator is the official who signs the discharge monitoring report, the local agency, as the permittee, shall remain liable for compliance with all permit conditions. In those instances where the highest ranking official having day-to-day managerial and operational responsibilities for a discharging facility of a local agency does not have the responsibility to authorize capital expenditures and hire personnel, a person having that responsibility, or a person designated by that person, shall submit to the department, along with the discharge monitoring report, a certification that that person has received and reviewed the discharge monitoring report. The person submitting the certification to the department shall not be liable for the accuracy of the information on the discharge monitoring report due to the submittal of the certification. Whenever a local agency has contracted with another entity to operate the municipal treatment works, the person submitting the certification shall be an employee of the permittee and not of the contract operator. The filing of amendments to a monitoring report in accordance with this paragraph shall not be considered a late filing of a report for purposes of subsection d. of section 6 of P.L.1990, c.28 (C.58:10A-10.1), or for purposes of determining a significant noncomplier;
(6) At all times, to maintain in good working order and operate as effectively as possible, any facilities or systems of control installed to achieve compliance with the terms and conditions of the permit;
(7) To limit concentrations of heavy metal, pesticides, organic chemicals and other contaminants in the sludge in conformance with the land-based sludge management criteria established by the department in the Statewide Sludge Management Plan adopted pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.) or established pursuant to the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. s.1251 et seq.), or any regulations adopted pursuant thereto;
(8) To report to the department or delegated local agency, as appropriate, any exceedance of an effluent limitation that causes injury to persons, or damage to the environment, or poses a threat to human health or the environment, within two hours of its occurrence, or of the permittee becoming aware of the occurrence. Within 24 hours thereof, or of an exceedance, or of becoming aware of an exceedance, of an effluent limitation for a toxic pollutant, a permittee shall provide the department or delegated local agency with such additional information on the discharge as may be required by the department or delegated local agency, including an estimate of the danger posed by the discharge to the environment, whether the discharge is continuing, and the measures taken, or being taken, to remediate the problem and any damage to the environment, and to avoid a repetition of the problem;
(9) Notwithstanding the reporting requirements stipulated in a permit for discharges to surface waters, a permittee shall be required to file monthly reports with the commissioner or delegated local agency if the permittee:
(a) in any month commits a serious violation or fails to submit a completed discharge monitoring report and does not contest, or unsuccessfully contests, the assessment of a civil administrative penalty therefor; or
(b) exceeds an effluent limitation for the same pollutant at the same discharge point source by any amount for four out of six consecutive months.
The commissioner or delegated local agency may restore the reporting requirements stipulated in the permit if the permittee has not committed any of the violations identified in this paragraph for six consecutive months;
(10) To report to the department or delegated local agency, as appropriate, any serious violation within 30 days of the violation, together with a statement indicating that the permittee understands the civil administrative penalties required to be assessed for serious violations, and explaining the nature of the serious violation and the measures taken to remedy the cause or prevent a recurrence of the serious violation.
g. The commissioner and a local agency shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.
h. In addition, any permit issued for a discharge from a municipal treatment works shall require the permittee:
(1) To notify the commissioner or local agency in advance of the quality and quantity of all new introductions of pollutants into a facility and of any substantial change in the pollutants introduced into a facility by an existing user of the facility, except for such introductions of nonindustrial pollutants as the commissioner or local agency may exempt from this notification requirement when ample capacity remains in the facility to accommodate new inflows. The notification shall estimate the effects of the changes on the effluents to be discharged into the facility.
(2) To establish an effective regulatory program, alone or in conjunction with the operators of sewage collection systems, that will assure compliance and monitor progress toward compliance by industrial users of the facilities with user charge and cost recovery requirements of the Federal Act or State law and toxicity standards adopted pursuant to P.L.1977, c.74 and pretreatment standards.
(3) As actual flows to the facility approach design flow or design loading limits, to submit to the commissioner or local agency for approval, a program which the permittee and the persons responsible for building and maintaining the contributory collection system shall pursue in order to prevent overload of the facilities.
i. (1) All local agencies shall prescribe terms and conditions, consistent with applicable State and federal law, or requirements adopted pursuant thereto by the department, upon which pollutants may be introduced into treatment works, and shall have the authority to exercise the same right of entry, inspection, sampling, and copying, and to impose the same remedies, fines and penalties, and to recover costs and compensatory damages as authorized pursuant to subsection a. of section 10 of P.L.1977, c.74 (C.58:10A-10) and section 6 of P.L.1990, c.28 (C.58:10A-10.1), with respect to users of such works, as are vested in the commissioner by P.L.1977, c.74, or by any other provision of State law, except that a local agency, except as provided in P.L.1991, c.8 (C.58:10A-10.4 et seq.), may not impose civil administrative penalties, and shall petition the county prosecutor or the Attorney General for a criminal prosecution under that section. Terms and conditions shall include limits for heavy metals, pesticides, organic chemicals and other contaminants in industrial wastewater discharges based upon the attainment of land-based sludge management criteria established by the department in the Statewide Sludge Management Plan adopted pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.) or established pursuant to the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. s.1251 et seq.), or any regulations adopted pursuant thereto.
(2) Of the amount of any penalty assessed and collected pursuant to an action brought by a local agency in accordance with section 10 of P.L.1977, c.74 or section 6 of P.L.1990, c.28 (C.58:10A-10.1), 10% shall be deposited in the "Wastewater Treatment Operators' Training Account," established in accordance with section 13 of P.L.1990, c.28 (C.58:10A-14.5), and used to finance the cost of training operators of municipal treatment works. The remainder shall be used by the local agency solely for enforcement purposes, and for upgrading municipal treatment works.
j. In reviewing permits submitted in compliance with P.L.1977, c.74 and in determining conditions under which such permits may be approved, the commissioner shall encourage the development of comprehensive regional sewerage planning or facilities, which serve the needs of the regional community, conform to the adopted area-wide water quality management plan for that region, and protect the needs of the regional community for water quality, aquifer storage, aquifer recharge, and dry weather based stream flows.
k. No permit may be issued, renewed, or modified by the department or a delegated local agency so as to relax any water quality standard or effluent limitation until the applicant, or permit holder, as the case may be, has paid all fees, penalties or fines due and owing pursuant to P.L.1977, c.74, or has entered into an agreement with the department establishing a payment schedule therefor; except that if a penalty or fine is contested, the applicant or permit holder shall satisfy the provisions of this section by posting financial security as required pursuant to paragraph (5) of subsection d. of section 10 of P.L.1977, c.74 (C.58:10A-10). The provisions of this subsection with respect to penalties or fines shall not apply to a local agency contesting a penalty or fine.
l. Each permitted facility or municipal treatment works, other than one discharging only stormwater or non-contact cooling water, shall be inspected by the department at least once a year; except that each permitted facility discharging into the municipal treatment works of a delegated local agency, other than a facility discharging only stormwater or non-contact cooling water, shall be inspected by the delegated local agency at least once a year. Except as hereinafter provided, an inspection required under this subsection shall be conducted within six months following a permittee's submission of an application for a permit, permit renewal, or, in the case of a new facility or municipal treatment works, issuance of a permit therefor, except that if for any reason, a scheduled inspection cannot be made the inspection shall be rescheduled to be performed within 30 days of the originally scheduled inspection or, in the case of a temporary shutdown, of resumed operation. Exemption of stormwater facilities from the provisions of this subsection shall not apply to any permitted facility or municipal treatment works discharging or receiving stormwater runoff having come into contact with a hazardous discharge site on the federal National Priorities List adopted by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act," Pub.L.96-510 (42 U.S.C. s.9601 et seq.), or any other hazardous discharge site included by the department on the master list for hazardous discharge site cleanups adopted pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16). Inspections shall include:
(1) A representative sampling of the effluent for each permitted facility or municipal treatment works, except that in the case of facilities or works that are not major facilities or significant indirect users, sampling pursuant to this paragraph shall be conducted at least once every three years;
(2) An analysis of all collected samples by a State owned and operated laboratory, or a certified laboratory other than one that has been or is being used by the permittee, or that is directly or indirectly owned, operated or managed by the permittee;
(3) An evaluation of the maintenance record of the permittee's treatment equipment;
(4) An evaluation of the permittee's sampling techniques;
(5) A random check of written summaries of test results, prepared by the certified laboratory providing the test results, for the immediately preceding 12-month period, signed by a responsible official of the certified laboratory, certifying the accuracy of the test results; and
(6) An inspection of the permittee's sample storage facilities and techniques if the sampling is normally performed by the permittee.
The department may inspect a facility required to be inspected by a delegated local agency pursuant to this subsection. Nothing in this subsection shall require the department to conduct more than one inspection per year.
m. The facility or municipal treatment works of a permittee identified as a significant noncomplier shall be subject to an inspection by the department, or the delegated local agency, as the case may be, which inspection shall be in addition to the requirements of subsection l. of this section. The inspection shall be conducted within 60 days of receipt of the discharge monitoring report that initially results in the permittee being identified as a significant noncomplier. The inspection shall include a random check of written summaries of test results, prepared by the certified laboratory providing the test results, for the immediately preceding 12-month period, signed by a responsible official of the certified laboratory, certifying the accuracy of the test results. A copy of each summary shall be maintained by the permittee. The inspection shall be for the purpose of determining compliance. The department or delegated local agency is required to conduct only one inspection per year pursuant to this subsection, and is not required to make an inspection hereunder if an inspection has been made pursuant to subsection l. of this section within six months of the period within which an inspection is required to be conducted under this subsection.
n. To assist the commissioner in assessing a municipal treatment works' NJPDES permit in accordance with paragraph (3) of subsection b. of section 7 of P.L.1977, c.74 (C.58:10A-7), a delegated local agency shall perform a complete analysis that includes a complete priority pollutant analysis of the discharge from, and inflow to, the municipal treatment works. The analysis shall be performed by a delegated local agency as often as the priority pollutant scan is required under the permit, but not less than once a year, and shall be based upon data acquired in the priority pollutant scan and from applicable sludge quality analysis reports. The results of the analysis shall be included in a report to be attached to the annual report required to be submitted to the commissioner by the delegated local agency.
o. Except as otherwise provided in section 3 of P.L.1963, c.73 (C.47:1A-3), any records, reports or other information obtained by the commissioner or a local agency pursuant to this section or section 5 of P.L.1972, c.42 (C.58:11-53), including any correspondence relating thereto, shall be available to the public; however, upon a showing satisfactory to the commissioner by any person that the making public of any record, report or information, or a part thereof, other than effluent data, would divulge methods or processes entitled to protection as trade secrets, the commissioner or local agency shall consider such record, report, or information, or part thereof, to be confidential, and access thereto shall be limited to authorized officers or employees of the department, the local agency, and the federal government.
p. The provisions of this section shall not apply to a discharge of petroleum to the surface waters of the State that occurs as a result of the process of recovering, containing, cleaning up or removing a discharge of petroleum in the surface waters of the State and that is undertaken in compliance with the instructions of a federal on-scene coordinator or of the commissioner or the commissioner's designee.
q. The commissioner shall, in consultation with the Department of Agriculture and the Aquaculture Advisory Council, provide for the issuance of general permits for the discharge of pollutants from concentrated aquatic animal production facilities and aquacultural projects. In establishing general permits the commissioner shall take into consideration the source and receiving water quality and the type of aquaculture activity being conducted. The general permits issued pursuant to this subsection shall give priority to meeting best management practices rather than attaining numeric pollutant discharge parameter levels. If the commissioner determines that a permittee cannot perform the best management practices in order to obtain a general permit or that the performance of best management practices will not be protective of water quality as required by P.L.1977, c.74, the commissioner may require the permittee to obtain an individual permit which may contain numeric pollutant parameter discharge limits.
a. Every schedule of compliance shall require the permittee to demonstrate to the commissioner the financial assurance, including the posting of a bond or other security approved by the commissioner, necessary to carry out the remedial measures required by the schedule of compliance; except that a local agency shall not be required to post financial security as a condition of a schedule of compliance.
b. The department or a delegated local agency shall afford an opportunity to the public to comment on a proposed administrative consent order prior to final adoption if the administrative consent order would establish interim enforcement limits that would relax effluent limitations established in a permit or a prior administrative order. The department or a delegated local agency shall provide public notice of the proposed administrative consent order, and announce the length of the comment period, which shall be not less than 30 days, commencing from the date of publication of the notice. A notice shall also include a summary statement describing the nature of the violation necessitating the administrative consent order and its terms or conditions; shall specify how additional information on the administrative consent order may be obtained; and shall identify to whom written comments are to be submitted. At least three days prior to publication of the notice, a written notice, containing the same information to be provided in the published notice, shall be mailed to the mayor or chief executive officer and governing body of the municipality and county in which the violation occurred, and to any other interested persons, including any other governmental agencies. The department or delegated local agency shall consider the written comments received during the comment period prior to final adoption of the administrative consent order. Not later than the date that final action is taken on the proposed order, the department or delegated agency shall notify each person or group having submitted written comments of the main provisions of the approved administrative consent order and respond to the comments received therefrom.
c. The commissioner or delegated local agency, on his or its own initiative or at the request of any person submitting written comments pursuant to subsection b. of this section, may hold a public hearing on a proposed administrative order or administrative consent order, prior to final adoption if the order would establish interim enforcement limits that would relax for more than 24 months effluent limitations established in a permit or a prior administrative order or administrative consent order. Public notice for the public hearing to be held pursuant to this subsection shall be published not more than 30 and not less than 15 days prior to the holding of the hearing. The hearing shall be held in the municipality in which the violation, necessitating the order, occurred. The department may recover all reasonable costs directly incurred in scheduling and holding the public hearing from the person requesting or requiring the interim enforcement limits.
The Legislature therefore determines that it is within the public interest to allow private entities who have applied for permits to build, install, maintain or operate any facility for the collection, treatment or discharge of any pollutant or for permits to implement pollution prevention process modifications to undertake such building, installation, maintenance or operation or to implement such process modifications while the department is reviewing their permit application, but with the clear and full understanding that they assume all risks for their actions.
Nothing in this section shall be construed to limit the department's discretion in establishing building, installation, maintenance and operating standards for such facilities, or in otherwise reviewing the permit application, nor shall the costs incurred by the applicant for the building, installation, maintenance or operation of such facilities or the implementation of pollution prevention process modifications during the pendency of the permit application review process be used by an applicant as grounds for an appeal of the department's decision on the permit application. If the department determines that any facilities or pollution prevention process modifications built, installed, maintained or implemented during the pendency of the permit application review process are not consistent with applicable federal and State laws, rules, or regulations, the department and the applicant shall enter into an agreement containing a schedule setting forth a date certain on which the applicant shall modify, replace or cease the operation of the facilities or implementation of the pollution prevention process modifications. If the department and the applicant shall fail to enter into an agreement, the department may issue a schedule setting forth a date certain on which the applicant shall comply.
Failure of the applicant to comply with the schedule setting forth a date for compliance shall constitute a violation of P.L.1977, c.74 (C.58:10A-1 et seq.), and shall subject the applicant to penalties as prescribed in that act. A person who builds, installs, maintains, or operates any facility for the collection, treatment, or discharge of pollutants or who implements pollution prevention process modifications in a manner which the department determines is not consistent with applicable federal or State laws, rules, or regulations, shall not be subject to civil or criminal penalties for that inconsistent action as long as the person's actions did not result in (1) the discharge of a pollutant which was not authorized to be discharged by the person's permit or (2) an exceedance of any applicable discharge parameter in the permit.
Nothing in this section shall be construed to authorize a person to discharge a pollutant not otherwise authorized to be discharged by a permit held by that person or to discharge a pollutant at a level in excess of the discharge parameters contained in the permit.
The provisions of this section shall not be construed to authorize or permit any building, installation, maintenance, or operation which would result in any new source of discharge but shall only apply to facilities for existing permitted sources of discharges.
As used in this section:
(1) "private entity" means any private individual, corporation, company, partnership, firm, association, owner or operator but shall not include, and the provisions of this section shall not apply to, any municipal, county, or State agency or authority or to any agency, authority or subdivision created by one or more municipal, county or State governments;
(2) "pollution prevention process modifications" means any physical or operational change to a process which reduces water pollution discharges to the environment.
"Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a pollutant into the waters of the State, onto land or into wells from which it might flow or drain into said waters or into waters or onto lands outside the jurisdiction of the State, which pollutant enters the waters of the State. "Discharge" includes the release of any pollutant into a municipal treatment works;
"Municipal treatment works" means the treatment works of any municipal, county, or State agency or any agency or subdivision created by one or more municipal, county or State governments and the treatment works of any public utility as defined in R.S.48:2-13;
"Treatment works" means any device or systems, whether public or private, used in the storage, treatment, recycling, or reclamation of municipal or industrial waste of a liquid nature including intercepting sewers, outfall sewers, sewage collection systems, cooling towers and ponds, pumping, power and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any other works including sites for the treatment process or for ultimate disposal of residues resulting from such treatment. "Treatment works" includes any other method or system for preventing, abating, reducing, storing, treating, separating, or disposing of pollutants, including storm water runoff, or industrial waste in combined or separate storm water and sanitary sewer systems; and
"Waters of the State" means the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction.
b. The owner or operator of a publicly owned municipal treatment works or municipal utility sewer line or storm drain line shall not accept any untreated or pre-treated wastewater discharged from a former landfill in the State that is situated within a municipality of the second class which is located within a county of the second class with a population density of 2,289.4 persons per square mile, according to the latest federal decennial census and that is a hazardous discharge site included on the National Priorities List of hazardous discharge sites adopted by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub.L.96-510 (42 U.S.C. s.9601 et seq.).
a. Construct an on-site treatment facility designed to remediate the former landfill so that the treated wastewater is environmentally safe for discharge to the groundwater on-site, as part of a comprehensive on-site treatment program which shall also include remedial treatment for the radionuclides in or about the waters at or near the former landfill;
b. Make available to the public free of charge the results of the testing for any pollutants at the site immediately upon their production;
c. In conjunction with appropriate officials of the Department of Environmental Protection and, if applicable, the federal government, hold regular monthly public meetings concerning the remediation so that the public may be apprised of the progress of the remediation plan, the treatment options being proposed and considered, the cost for the various treatment options being considered, the content and concentrations of the various pollutants existing at the site, the time-frame for completion of construction of any treatment facility, and the time-frame for the completion of the remediation; and
d. For the purpose of engendering public trust in the cleanup process, give a public accounting of the funds that have been spent to remediate the site, which shall include providing the costs and expenditures associated with constructing and operating the treatment facility and with designing and operating the facility to also treat radionuclides, as well as any other costs and expenditures associated with the remediation.
a. All permits issued under this act shall be for fixed terms not to exceed five years. Any permittee who wishes to continue discharging after the expiration date of his permit must file for a new permit at least 180 days prior to that date.
b. (1) The commissioner may modify, suspend, or revoke a permit in whole or in part during its term for cause, including but not limited to the following:
(a) Violation of any term or condition of the permit;
(b) Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts.
(2) If a toxic effluent limitation or prohibition, including any schedule of compliance specified in such effluent limitation or prohibition, is established under section 307(a) of the Federal Act for a toxic pollutant which is more stringent than any limitations upon such pollutant in an existing permit, the commissioner shall revise or modify the permit in accordance with the toxic effluent limitation or prohibition and so notify the permittee.
(3) The department shall include in a permit for a delegated local agency effluent limits for all pollutants listed under the United States Environmental Protection Agency's Categorical Pretreatment Standards, adopted pursuant to 33 U.S.C. s. 1317, and such other pollutants for which effluent limits have been established for a permittee discharging into the municipal treatment works of the delegated local agency, except those categorical or other pollutants that the delegated local agency demonstrates to the department are not discharged above detectable levels by the municipal treatment works. The department, by permit, may authorize the use by a delegated local agency of surrogate parameters for categorical and other pollutants discharged from a municipal treatment works, except that if a surrogate parameter is exceeded, the department shall require effluent limits for each categorical or other pollutant for which the surrogate parameter was used, for such period of time as may be determined by the department.
c. Notice of every proposed suspension, revocation or renewal, or substantial modification of a permit and opportunity for public hearing thereupon, shall be afforded in the same manner as with respect to original permit applications as provided for in this act. In any event notice of all modifications to a discharge permit shall be published in the DEP Bulletin.
d. A determination to grant, deny, modify, suspend, or revoke a permit shall constitute a contested case under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The permittee, or any other person considered a party to the action pursuant to subsection e. of this section, shall have the opportunity to contest the determination in an administrative hearing.
e. A person, other than the permittee, seeking to be considered a party to the action shall submit a request to be so considered to the commissioner within 30 days of the publication of the notice of the decision to grant, deny, modify, suspend, or revoke a permit. The administrative law judge upon referral, or the commissioner, if the commissioner decides to make the determination, shall find whether a person other than the permittee is a party to the action within 30 days of the submission of the request or the referral to the administrative law judge. A person shall be deemed a party to the action only if:
(1) the person's objections to the action to grant, deny, modify, suspend, or revoke a permit were raised by that person in the hearing held pursuant to section 9 of P.L.1977, c.74 (C.58:10A-9), or, if no hearing was held, the objections were raised in a written submission;
(2) the person demonstrates the existence of a significant issue of law or fact;
(3) the person shows that the significant issue of law or fact is likely to affect the permit determination;
(4) the person can show an interest, including an environmental, aesthetic, or recreational interest, which is or may be affected by the permit decision and that the interest fairly can be traced to the challenged action and is likely to be redressed by a decision favorable to that person. An organization may contest a permit decision on behalf of one or more of its members if (a) the organization's member or members could otherwise be a party to the action in their own right; and (b) the interests the organization seeks to protect are germane to the organization's purpose; and
(5) the person submits the following information with the request to be considered a party to the action:
(a) a statement of each legal or factual question alleged to be at issue and its relevance to the permit decision, together with a designation of the specific factual areas to be adjudicated and the hearing time estimated to be necessary for adjudication;
(b) information supporting the request which shall be submitted pursuant to adopted rules;
(c) the name, mailing address, and telephone number of the person making the request;
(d) a clear and concise factual statement of the nature and scope of the interest of the requester;
(e) the names and addresses of all affected persons whom the requester represents;
(f) a statement by the requester that, upon motion of any party granted by the hearing officer, or upon order of the hearing officer sua sponte, the requester shall make available to appear and testify at the administrative hearing, if granted, the following: the requester; all affected persons represented by the requester; and all officers, directors, employees, consultants, and agents of the requester;
(g) specific references to the contested permit conditions, as well as suggested revised or alternative permit conditions, including permit denials, which, in the judgment of the requester, would be required to implement the purposes of P.L.1977, c.74; and
(h) in the case of application of control or treatment technologies identified in the statement of basis or fact sheet, identification of the basis for the objection, and the alternative technologies or combination of technologies which the requester believes are necessary to meet the requirements of P.L.1977, c.74.
Whenever a person's request to be considered to be a party to the action is granted, the commissioner or the administrative law judge, as appropriate, shall identify the permit conditions which have been contested by the requester and for which an administrative hearing will be granted. Permit conditions which are not so contested shall not be affected by, or considered at, the administrative hearing. All requests by persons seeking to be considered a party to the action for a particular permit shall be combined in a single administrative hearing.
f. A permittee may contest the determination to grant, deny, modify, suspend, or revoke a permit in an administrative hearing pursuant to subsection d. of this section only upon the placement, in escrow, of money in an amount equal to the permit fee.
As used in this section, "aquaculture" means the propagation, rearing, and subsequent harvesting of aquatic organisms in controlled or selected environments, and the subsequent processing, packaging and marketing, and shall include, but need not be limited to, activities such as stocking, intervention in the rearing process to increase production, feeding, transplanting, and providing for protection from predators and shall not include the construction of facilities and appurtenant structures that might otherwise be regulated pursuant to any State or federal law or regulation, and "aquatic organism" means and includes, but need not be limited to, finfish, mollusks, crustaceans, and aquatic plants which are the property of a person engaged in aquaculture.
(1) such documentation or other information on the permit application as may be prescribed by the department on a checklist made available to a prospective applicant;
(2) if the discharge from the proposed groundwater remedial action is located within a wastewater service district or area of a local public entity, a certified statement that a request, dated at least 60 days prior to the filing of the permit application, had been made to the local public entity to discharge the groundwater into the wastewater collection or treatment facilities of that entity, and that no reply has been received from that entity, or a written statement by the local public entity, dated not more than 60 days prior to the filing of the permit application with the department, that the entity has approved or rejected a written request by the applicant to discharge the treated groundwater into the wastewater collection or treatment facilities of that entity. Notwithstanding that a local public entity has approved the request to discharge groundwater into its facilities, the department may approve the applicant's permit to discharge the groundwater to surface water upon a finding that it is in the public interest;
(3) a certified statement that a copy of the completed application form along with a consent request, as prescribed in subsection b. of this section, have been filed with the clerk of the municipality in which the site of the proposed groundwater remedial action is located, and setting forth the date of the filing with the host municipality, which filing shall be made prior to, or concurrent with, the filing of the application with the department;
(4) within the pinelands area, documentation from the Pinelands Commission that the application is consistent with the requirements of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.) or any regulations promulgated pursuant thereto and section 502 of the "National Parks and Recreation Act of 1978" (Pub.L. 95-625); and
(5) within the Highlands preservation area, documentation from the Highlands Water Protection and Planning Council that the application is consistent with the requirements of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted pursuant thereto.
b. The department shall prescribe the form and content of a request for consent filed with a municipality pursuant to paragraph (3) of subsection a. of this section. The municipal consent request shall be limited to an identification of all municipal approvals with which the applicant is required to comply, the status of any applications filed therefor, and whether or not the municipality consents to the application and the specific reasons therefor. The request for consent form shall also advise that documentation and other information relating to the application have been filed and are available for review at the department. A municipality receiving a request for consent form shall have 30 days from the date of receipt of a copy of the application and request for consent form to file with the department the information requested, and its consent of, or objections to, the application. Municipal consent or objection to a groundwater remedial action shall be by resolution of the governing body of the municipality unless the governing body has, by resolution, delegated such authority to a qualified officer or entity thereof, in which case the endorsement shall be signed by the designated officer or official of the entity. Notwithstanding that a municipality objects to a permit application or fails to file a consent or objection to the permit application, the department may approve the applicant's permit application to discharge groundwater to surface water.
c. An application pursuant to subsection a. of this section shall be deemed complete, for the purposes of departmental review, within 30 days of the filing of the application with the department unless the department notifies the applicant, in writing, prior to expiration of the 30 days that the application has failed to satisfy one or more of the items identified in subsection a. of this section. If an application is determined to be complete, the department shall review and take final action on the completed application within 60 days from commencement of the review, or, if the parties mutually agree to a 30-day extension, within 90 days therefrom. The review period for a completed application shall commence immediately upon termination of the 30-day period, or upon determination by the department that the application is complete, whichever occurs first. If the department fails to take final action on a permit application for a general permit in the time frames set forth in this subsection, that general permit shall be deemed to have been approved by the department. The department shall review an application for a permit pursuant to subsection a. of this section and shall take action on that application pursuant to the time frames set forth in this subsection, notwithstanding that all of the municipal approvals have not been obtained, unless such approvals would materially affect the terms and conditions of the permit, except that in such instances the department may condition its approval of the application on the necessary municipal approvals being subject to the terms and conditions of the application.
d. The department may issue a general permit for the discharge of groundwater to surface water pursuant to a groundwater remedial action of discharged petroleum products as provided in subsection a. of this section.
e. (1) The department may not require a municipal consent of a treatment works application for a groundwater remedial action for which a permit application is submitted pursuant to subsection a. of this section.
(2) If a completed application for a treatment works approval for a groundwater remedial action is filed with the department at the same time as an application for a general permit therefor, the department shall concurrently review the two applications, except that the review of the application for the treatment works approval for a groundwater remedial action shall not be subject to the time frames set forth in subsection c. of this section.
f. The provisions of this section shall apply to applications filed on or after the effective date of this act, except that the Department of Environmental Protection may implement any of the provisions of this section prior to that date.
g. The department may, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to implement the provisions of this act.
h. For purposes of this section:
"General permit" means a permit issued by the department for similar discharges.
"Groundwater remedial action" means the removal or abatement of one or more pollutants in a groundwater source.
"Local public entity" means a sewerage authority established pursuant to P.L.1946, c.138 (C.40:14A-1 et seq.), a municipal authority established pursuant to P.L.1957, c.183 (C.40:14B-1 et seq.), the Passaic Valley Sewerage Commissioners continued pursuant to R.S.58:14-2, a joint meeting established pursuant to R.S.40:63-68 et seq. or a local unit authorized to operate a sewerage facility pursuant to N.J.S.40A:26A-1 et seq., or any predecessor act.
"Underground storage tank" shall have the same meaning as in section 2 of P.L.1986, c.102 (C.58:10A-22), except that as used herein underground storage tanks shall include:
(1) farm underground storage tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;
(2) underground storage tanks used to store heating oil for on-site consumption in a nonresidential building with a capacity of 2,000 gallons or less; and
(3) underground storage tanks used to store heating oil for on-site consumption in a residential building.
Whenever the commissioner finds that discharges from a point source or a group of point sources with the application of the effluent limitations authorized in this act, which effluent limitations are as stringent as the best available technology economically achievable as provided for in the Federal Act or State law, would interfere with the attainment and maintenance of applicable water quality standards, the commissioner may establish more stringent effluent limitations for each such point source or group of point sources, which effluent limitations can reasonably be expected to contribute to the attainment and maintenance of the applicable water quality standards. Prior to the establishment of any more stringent effluent limitations under this section, the commissioner shall publish a notice of his intent to establish such limitations and, upon request of a person affected by any such limitations, the commissioner shall hold a public hearing to determine if there is a reasonable relationship between the economic and social costs of achieving such limitations, including any economic or social dislocation in the affected community or communities, and the social and environmental benefits to be obtained, including the objective of restoring and maintaining the water quality of the State, and to determine whether such effluent limitations can be implemented with available technology or with other control strategies. If a person affected by any such limitations demonstrates at the hearing that there is no reasonable relationship between the economic and social costs of compliance and the benefits to be obtained, the commissioner shall modify any such limitations as they may apply to that person.
Applications for permits shall be submitted within such times, on such forms, and with such signatures as may be prescribed by the commissioner and shall contain such information as he may require. The commissioner shall, in accordance with a fee schedule adopted by regulation, establish and charge reasonable annual administrative fees, which fees shall be based upon, and shall not exceed, the estimated cost of processing, monitoring and administering the NJPDES permits. Said fees shall be deposited to the credit of the State and be deemed as part of the General State Fund. The Legislature shall annually appropriate an amount equivalent to the amount anticipated to be collected as fees charged under this section in support of NJPDES program.
b. The commissioner shall give public notice of every complete application for a permit in a manner designed to inform interested and potentially interested persons, affected states and appropriate governmental agencies of his proposed determination to issue or deny a permit. The notice shall announce a period of at least 30 days during which the interested persons may request additional facts, submit written views, and request a public hearing on the proposed discharge or determination. All written comments so submitted shall be retained and considered by the commissioner in formulating his final determination with respect to the permit application. The commissioner may give combined notice of two or more permit applications and proposed determinations provided that the requirements of this section are observed for each application.
c. All permit applications, documented information concerning actual and proposed discharges, comments received from the public, and draft and issued permits shall be made available to the public for inspection and for duplication. At his discretion, the commissioner may also make available any other records, reports, plans or information pertaining to permit applicants or permittees, but he shall protect from disclosure any information, other than effluent data, upon a showing by any person that such information, if made public, would divulge methods or processes entitled to protection as trade secrets of such person. The commissioner may prescribe reasonable fees to reimburse the department for duplication expenses under this section.
d. The commissioner shall hold a public hearing on a permit application before a final determination, if a significant showing of interest on the part of the public appears in favor of holding such a hearing. At his discretion, the commissioner may also hold such a hearing on his own motion or if requested to so do by any other interested person. Public notices of every public hearing under this subsection, including a concise statement of the issues to be considered therein, shall be given at least 30 days in advance, and shall be circulated at least as widely as was the notice of the permit application. The commissioner may hold a single hearing on two or more applications. To the extent feasible, he shall afford all persons or representatives of all points of view an opportunity to appear, but may so allocate hearing time as to exclude repetitious, redundant, or irrelevant matter. All testimony and documentary material submitted at the hearing shall be considered by the commissioner in formulating his final determination.
e. The commissioner may appoint and employ such persons as he deems necessary to enforce and administer the provisions of this act, and determine their qualifications, term of office, duties and compensation, all without regard to the provisions of Title 11, Civil Service, of the Revised Statutes.
a. Whenever the commissioner finds that any person is in violation of any provision of this act, he shall:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) Levy a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Use of any of the remedies specified under this section shall not preclude use of any other remedy specified.
In the case of one or more pollutants for which interim enforcement limits have been established pursuant to an administrative order, including an administrative consent order, by the department or a local agency, the permittee shall be liable for the enforcement limits stipulated therein.
b. Whenever the commissioner finds that any person is in violation of any provision of this act, he may issue an order (1) specifying the provision or provisions of this act, or the rule, regulation, water quality standard, effluent limitation, or permit of which he is in violation, (2) citing the action which caused such violation, (3) requiring compliance with such provision or provisions, and (4) giving notice to the person of his right to a hearing on the matters contained in the order.
c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief for any violation of this act or of a permit issued hereunder. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Assessment of the violator for the reasonable costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) Assessment of the violator for any reasonable cost incurred by the State in removing, correcting or terminating the adverse effects upon water quality resulting from any unauthorized discharge of pollutants for which the action under this subsection may have been brought;
(4) Assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, or other natural resources, and for any other actual damages caused by an unauthorized discharge;
(5) Assessment against a violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
Assessments under paragraph (4) of this subsection shall be paid to the State Treasurer, except that compensatory damages shall be paid by specific order of the court to any persons who have been aggrieved by the unauthorized discharge. Assessments pursuant to actions brought by the commissioner under paragraphs (2), (3) and (5) of this subsection shall be paid to the "Clean Water Enforcement Fund," established pursuant to section 12 of P.L.1990, c.28 (C.58:10A-14.4).
d. (1) (a) The commissioner is authorized to assess, in accordance with a uniform policy adopted therefor, a civil administrative penalty of not more than $50,000.00 for each violation and each day during which such violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, and duration. The commissioner shall adopt, by regulation, a uniform assessment of civil penalties policy by January 1, 1992.
(b) In adopting rules for a uniform penalty policy for determining the amount of a penalty to be assessed, the commissioner shall take into account the type, seriousness, including extent, toxicity, and frequency of a violation based upon the harm to public health or the environment resulting from the violation, the economic benefits from the violation gained by the violator, the degree of cooperation or recalcitrance of the violator in remedying the violation, any measures taken by the violator to avoid a repetition of the violation, any unusual or extraordinary costs directly or indirectly imposed on the public by the violation other than costs recoverable pursuant to paragraph (3) or (4) of subsection c. of this section, and any other pertinent factors that the commissioner determines measure the seriousness or frequency of the violation, or conduct of the violator.
(c) In addition to the assessment of a civil administrative penalty, the commissioner may, by administrative order and upon an appropriate finding, assess a violator for costs authorized pursuant to paragraphs (2) and (3) of subsection c. of this section.
(2) No assessment shall be levied pursuant to this subsection until after the discharger has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil penalties to be imposed; and a statement of the party's right to a hearing. The ordered party shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, then the notice shall become a final order after the expiration of the 20-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order.
(3) If a civil administrative penalty imposed pursuant to this subsection is not paid within 30 days of the date that the penalty is due and owing, and the penalty is not contested by the person against whom the penalty has been assessed, or the person fails to make a payment pursuant to a payment schedule entered into with the department, an interest charge shall accrue on the amount of the penalty due and owing from the 30th day after the date on which the penalty was due and owing. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
(4) The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. Any civil administrative penalty assessed under this section may be compromised by the commissioner upon the posting of a performance bond by the violator, or upon such terms and conditions as the commissioner may establish by regulation, except that the amount compromised shall not be more than 50% of the assessed penalty, and in no instance shall the amount of that compromised penalty be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). In the case of a violator who is a local agency that enters into an administrative consent order, the terms of which require the local agency to take prescribed measures to comply with its permit, the commissioner shall have full discretion to compromise the amount of penalties assessed or due for violations occurring during a period up to 24 months preceding the entering into the administrative consent order; except that the amount of the compromised penalty may not be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). A civil administrative penalty assessed against a local agency for a violation of an administrative consent order may not be compromised by more than 50% of the assessed penalty. In no instance shall the amount of a compromised penalty assessed against a local agency be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). The commissioner shall not compromise the amount of any component of a civil administrative penalty which represents the economic benefit gained by the violator from the violation.
(5) A person, other than a local agency, appealing a penalty assessed against that person in accordance with this subsection, whether contested as a contested case pursuant to P.L.1968, c.410 (C.52:14B-1 et seq.) or by appeal to a court of competent jurisdiction, shall, as a condition of filing the appeal, post with the commissioner a refundable bond, or other security approved by the commissioner, in the amount of the civil administrative penalty assessed. If the department's assessed penalty is upheld in full or in part, the department shall be entitled to a daily interest charge on the amount of the judgment from the date of the posting of the security with the commissioner and until paid in full. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey. In addition, if the amount of the penalty assessed by the department is upheld in full in an appeal of the assessment at an administrative hearing or at a court of competent jurisdiction, the person appealing the penalty shall reimburse the department for all reasonable costs incurred by the department in preparing and litigating the imposition of the assessment, except that no litigation costs shall be imposed where the appeal ultimately results in a reduction or elimination of the assessed penalty.
(6) A civil administrative penalty imposed pursuant to a final order:
(a) may be collected or enforced by summary proceedings in a court of competent jurisdiction in accordance with "the penalty enforcement law," N.J.S.2A:58-1 et seq.; or
(b) shall constitute a debt of the violator or discharger and the civil administrative penalty may be docketed with the clerk of the Superior Court, and shall have the same standing as any judgment docketed pursuant to N.J.S.2A:16-1; except that no lien shall attach to the real property of a violator pursuant to this subsection if the violator posts a refundable bond or other security with the commissioner pursuant to an appeal of a final order to the Appellate Division of the Superior Court. No lien shall attach to the property of a local agency.
(7) The commissioner shall refer to the Attorney General and the county prosecutor of the county in which the violations occurred the record of violations of any permittee determined to be a significant noncomplier.
e. Any person who violates this act or an administrative order issued pursuant to subsection b. or a court order issued pursuant to subsection c., or who fails to pay a civil administrative penalty in full pursuant to subsection d., or to make a payment pursuant to a payment schedule entered into with the department, shall be subject upon order of a court to a civil penalty not to exceed $50,000.00 per day of such violation, and each day's continuance of the violation shall constitute a separate violation. Any penalty incurred under this subsection may be recovered with costs, and, if applicable, interest charges, in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). In addition to any civil penalties, costs or interest charges, the court, in accordance with paragraph (5) of subsection c. of this section, may assess against a violator the amount of any actual economic benefits accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce "the penalty enforcement law" in conjunction with this act.
f. (1)(a) Any person who purposely, knowingly, or recklessly violates this act, and the violation causes a significant adverse environmental effect, shall, upon conviction, be guilty of a crime of the second degree, and shall, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, be subject to a fine of not less than $25,000 nor more than $250,000 per day of violation, or by imprisonment, or by both.
(b) As used in this paragraph, a significant adverse environmental effect exists when an action or omission of the defendant causes: serious harm or damage to wildlife, freshwater or saltwater fish, any other aquatic or marine life, water fowl, or to their habitats, or to livestock, or agricultural crops; serious harm, or degradation of, any ground or surface waters used for drinking, agricultural, navigational, recreational, or industrial purposes; or any other serious articulable harm or damage to, or degradation of, the lands or waters of the State, including ocean waters subject to its jurisdiction pursuant to P.L.1988, c.61 (C.58:10A-47 et seq.).
(2) Any person who purposely, knowingly, or recklessly violates this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a monitoring report, or any portion thereof, required pursuant to this act, shall, upon conviction, be guilty of a crime of the third degree, and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $75,000 per day of violation, or by imprisonment, or by both.
(3) Any person who negligently violates this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a discharge monitoring report, or any portion thereof, required pursuant to this act, shall, upon conviction, be guilty of a crime of the fourth degree, and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or by both.
(4) Any person who purposely or knowingly violates an effluent limitation or other condition of a permit, or who discharges without a permit, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, shall, upon conviction, be guilty of a crime of the first degree, and shall, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, be subject of a fine of not less than $50,000 nor more than $250,000, or, in the case of a corporation, a fine of not less than $200,000 nor more than $1,000,000, or by imprisonment or by both.
(5) As used in this subsection, "purposely," "knowingly," "recklessly," and "negligently" shall have the same meaning as defined in N.J.S.2C:2-2.
g. All conveyances used or intended for use in the purposeful or knowing discharge, in violation of the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.), of any pollutant or toxic pollutant are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).
h. The amendatory portions of this section, as set forth in P.L.1990, c.28 (C.58:10A-10.1 et al.), except for subsection f. of this section, shall not apply to violations occurring prior to July 1, 1991.
a. The provisions of section 10 of P.L.1977, c.74 (C.58:10A-10), or any rule or regulation adopted pursuant thereto to the contrary notwithstanding, the department shall assess, with no discretion, a mandatory minimum civil administrative penalty for the violations enumerated in subsections b., c., and d. of this section.
b. The department shall assess a minimum mandatory civil administrative penalty of $1,000 against a violator for each serious violation, which assessment shall be made within six months of the serious violation.
c. The department shall assess a minimum mandatory civil administrative penalty of $5,000 against a violator for the violation that causes the violator to be, or to continue to be, a significant noncomplier.
d. The department shall assess a minimum mandatory civil administrative penalty of $100 for each effluent parameter omitted on a discharge monitoring report required to be submitted to the department, and each day during which the effluent parameter information is overdue shall constitute an additional, separate, and distinct offense, except that in no instance shall the total civil administrative penalty assessed pursuant to this subsection exceed $50,000 per month for any one discharge monitoring report. The civil administrative penalty assessed pursuant to this subsection shall accrue as of the fifth day following the date on which the discharge monitoring report was due and shall continue to accrue for 30 days. The commissioner may continue to assess civil administrative penalties beyond the 30-day period until submission of the overdue discharge monitoring report or overdue information. A permittee may contest the assessment of the civil administrative penalty required to be assessed pursuant to this subsection by notifying the commissioner in writing, within 30 days of the date on which the effluent parameter information was required to be submitted to the department, of the existence of extenuating circumstances beyond the control of the permittee, including circumstances that prevented timely submission of the discharge monitoring report, or portion thereof, or, if the civil administrative penalty is imposed because of an inadvertent omission of one or more effluent parameters, the permittee may submit, without liability for a civil administrative penalty assessed pursuant to this subsection or subsection c. of this section, the omitted information within 10 days of receipt by the permittee of notice of omission of the parameter or parameters.
e. If a violator establishes, to the satisfaction of the department, that a single operational occurrence has resulted in the simultaneous violation of more than one pollutant parameter, the department may consider, for purposes of calculating the mandatory civil administrative penalties to be assessed pursuant to subsections b. and c. of this section, the violation of the interrelated permit parameters to be a single violation.
f. The requirement that the department assess a minimum civil administrative penalty pursuant to this section shall in no way be construed to limit the authority of the department to assess a civil administrative penalty or bring an action for a civil penalty for a violation at any time after a violation occurred or to assess a more stringent civil administrative penalty or civil penalty against a person pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10).
g. The provisions of this section shall not apply to violations occurring prior to the effective date of this section.
a. A person may be entitled to an affirmative defense to liability for a mandatory assessment of a civil administrative penalty pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1) for a violation of an effluent limitation occurring as a result of an upset, an anticipated or unanticipated bypass, or a testing or laboratory error. A person shall be entitled to an affirmative defense only if, in the determination of the department or delegated local agency, the person satisfies the provisions of subsection b., c., e. or f., as applicable, of this section.
b. A person asserting an upset as an affirmative defense pursuant to this section, except in the case of an approved maintenance operation, shall notify the department or the local agency of an upset within 24 hours of the occurrence, or of becoming aware of the occurrence, and, within five days thereof, shall submit written documentation, including properly signed, contemporaneous operating logs, or other relevant evidence, on the circumstances of the violation, and demonstrating, as applicable, that:
(1) the upset occurred, including the cause of the upset and, as necessary, the identity of the person causing the upset, except that, in the case of a treatment works, the local agency may certify that despite a good faith effort it is unable to identify the cause of the upset, or the person causing the upset;
(2) the permitted facility was at the time being properly operated;
(3) the person submitted notice of the upset as required pursuant to this section, or, in the case of an upset resulting from the performance by the permittee of maintenance operations, the permittee provided prior notice and received an approval therefor from the department or the delegated local agency; and
(4) the person complied with any remedial measures required by the department or delegated local agency.
c. A person asserting an unanticipated bypass as an affirmative defense pursuant to this section shall notify the department or the local agency of the unanticipated bypass within 24 hours of its occurrence, and, within five days thereof, shall submit written documentation, including properly signed, contemporaneous operating logs, or other relevant evidence, on the circumstances of the violation, and demonstrating that:
(1) the unanticipated bypass occurred, including the circumstances leading to the bypass;
(2) the permitted facility was at the time being properly operated;
(3) the person submitted notice of the upset as required pursuant to this section; and
(4) the person complied with any remedial measures required by the department or delegated local agency;
(5) the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and
(6) there was no feasible alternative to the bypass such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of downtime, except that the provisions of this paragraph shall not apply to a bypass occurring during normal periods of equipment downtime or preventive maintenance if, on the basis of the reasonable engineering judgment of the department or delegated local agency, back-up equipment should have been installed to avoid the need for a bypass.
d. Nothing contained in subsection b. or c. of this section shall be construed to limit the requirement to comply with the provisions of paragraph (8) of subsection f. of section 6 of P.L.1977, c.74 (C.58:10A-6).
e. A person may assert an anticipated bypass as an affirmative defense pursuant to this section only if the person provided prior notice to the department or delegated local agency, if possible, at least 10 days prior to the date of the bypass, and the department or delegated local agency approved the bypass, and if the person is able to demonstrate that:
(1) the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and
(2) there was no feasible alternative to the bypass such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of downtime, except that the provisions of this paragraph shall not apply to a bypass occurring during normal periods of equipment downtime or preventive maintenance if, on the basis of the reasonable engineering judgment of the department or delegated local agency, back-up equipment should have been installed to avoid the need for a bypass.
f. A person asserting a testing or laboratory error as an affirmative defense pursuant to this section shall have the burden to demonstrate, to the satisfaction of the department, that a serious violation involving the exceedance of an effluent limitation was the result of unanticipated test interferences, sample contamination, analytical defects, or procedural deficiencies in sampling or other similar circumstances beyond the control of the permittee.
g. A determination by the department on a claim that a violation of an effluent limitation was caused by an upset, a bypass or a testing or laboratory error shall be considered final agency action on the matter for the purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), and shall be subject only to review by a court of competent jurisdiction.
h. An assertion of an upset, a bypass or a testing or laboratory error as an affirmative defense pursuant to this section may not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
i. If the department determines, pursuant to the provisions of this section, that a violation of an effluent limitation was caused by an upset, a bypass or a testing or laboratory error, the commissioner shall waive any mandatory civil administrative penalty required to be assessed pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1), and the violation shall not be considered a serious violation or violation causing a person to be designated a significant noncomplier.
j. The affirmative defense for an upset, a bypass or a testing or laboratory error provided in this section shall only apply to the imposition of mandatory penalties pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1) for serious violations and for determining a significant noncomplier. Nothing in this act shall be construed to limit the authority of the department, or a delegated local agency, to adopt regulations or permit conditions that include or do not include an upset, a bypass or a testing or laboratory error, using different standards, as a defense for any other exceedance of an effluent limitation.
a. The department may request that any person whom the department has reason to believe has, or may have, information relevant to a discharge or potential discharge of a pollutant, including, but not limited to, any person having generated, treated, transported, stored, or disposed of the pollutant, or any person having arranged for the transportation, storage, treatment or disposal of the pollutant, shall provide, upon receipt of written notice therefor, the following information to the department:
(1) The nature, extent, source, and location of the discharge, or potential discharge;
(2) Identification of the nature, type, quantity, source, and location of the pollutant or pollutants;
(3) The identity of, and other relevant information concerning, the generator or transporter of the pollutant, or any other person subject to liability for the discharge or potential discharge;
(4) The ability of any person liable, or potentially liable, for the discharge, or potential discharge, to pay for, or perform, the cleanup and removal, including the availability of appropriate insurance coverage.
Information requested by the department shall be provided in the form and manner prescribed by the department, which may include documents or information in whatever form stored or recorded.
b. The commissioner may issue subpoenas requiring attendance and testimony under oath of witnesses before, or the production of documents or information, in whatever form stored or recorded, to him or to a representative designated by the commissioner. Service of a subpoena shall be by certified mail or personal service. Any person who fails to appear, give testimony, or produce documents in response to a subpoena issued pursuant to this subsection, shall be subject to the penalty provisions of section 10 of P.L.1977, c.74 (C.58:10A-10). Any person who, having been sworn, knowingly gives false testimony or knowingly gives false documents or information to the department is guilty of perjury and is subject to the penalty provisions of section 10 of P.L.1977, c.74.
c. A person receiving a request for information made pursuant to subsection a. of this section, or to a subpoena issued pursuant to subsection b. of this section, shall:
(1) be required to conduct a diligent search of all documents in his possession, custody or control, and to make reasonable inquiries of present and past employees who may have knowledge or documents relevant thereto;
(2) have a continuing obligation to supplement the information if additional relevant information is discovered, or if it is determined that the information previously provided was false, inaccurate or misleading; and
(3) grant the department access, at reasonable times, to any vessel, facility, property or location to inspect and copy all relevant documents or, at the department's request, copy and furnish to the department all such documents.
d. No person may destroy any records relating to a discharge or potential discharge to surface water within five years of the discharge, or to a discharge or potential discharge to ground water at any time without the prior written permission of the commissioner.
The Department of Environmental Protection or a delegated local agency may issue a summons for a violation of any provision of P.L.1977, c.74 (C.58:10A-1 et seq.), including, in the case of a delegated local agency, a violation of any rule, regulation or pretreatment standard adopted by a delegated local agency if the amount of the civil penalty assessed is $5,000 or less. The summons shall be enforceable, in accordance with the "penalty enforcement law," N.J.S.2A:58-1 et seq., in the municipal court of the territorial jurisdiction in which the violation occurred. The summons shall be signed and issued by any person authorized to enforce the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.). Proceedings before, and appeals from a decision of, a municipal court shall be in accordance with the Rules Governing the Court of the State of New Jersey. Of the penalty amount collected pursuant to an action brought in a municipal court pursuant to this section, 10% shall be paid to the municipality or municipalities in which the court retains jurisdiction for use for court purposes, with the remainder to be retained by the department or the delegated local agency.
A delegated local agency may, after consultation with a compliance officer designated by the department, issue a civil administrative penalty for any violation of the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.), including a violation of any rule, regulation or pretreatment standard adopted by a delegated local agency, or assess, by civil administrative order, any costs recoverable pursuant to subsection c. of section 10 of that act, including the reasonable costs of investigation and inspection, and preparing and litigating the case before an administrative law judge pursuant to this section, except assessments for compensatory damages and economic benefits. Notice of the penalty or assessment shall be given to the violator in writing by the delegated local agency, and payment of the penalty or assessment shall be due and payable, unless a hearing is requested in writing by the violator, within 20 days of receipt of notice. If a hearing is requested, the penalty or assessment shall be deemed a contested case and shall be submitted to the Office of Administrative Law for an administrative hearing in accordance with sections 9 and 10 of P.L.1968, c.410 (C.52:14B-9 and 52:14B-10).
Upon conclusion of an administrative hearing held pursuant to section 2 of P.L.1991, c.8 (C.58:10A-10.5), the administrative law judge shall prepare and transmit a recommended report and decision on the case to the head of the delegated local agency and to each party of record, as prescribed in subsection c. of section 10 of P.L.1968, c.410 (C.52:14B-10). The head of the delegated local agency shall afford each party of record an opportunity to file exceptions, objections and replies thereto, and to present arguments, either orally or in writing, as required by the delegated local agency. After reviewing the record of the administrative law judge, and any filings received thereon, but not later than 45 days after receipt of the record and decision, the head of the delegated local agency shall adopt, reject, or modify the recommended report and decision. If the head of the delegated local agency fails to modify or reject the report within the 45-day period, the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the delegated local agency, and the recommended report and decision shall be made a part of the record in the case. For good cause shown, and upon certification by the Director of the Office of Administrative Law and the head of the delegated local agency, the time limits established herein may be extended.
A final decision or order of the head of the delegated local agency shall be in writing or stated in the record. A final decision shall include separately stated findings of fact and conclusions of law, based upon the evidence of record at the hearing of the administrative law judge. Findings of fact shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A final decision or order may incorporate by reference any or all of the recommendations of the administrative law judge.
Parties of record shall be notified either by personal service or by mail of any final decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith by registered or certified mail to each party of record and to a party's attorney of record.
A final decision or order shall be effective on the date of delivery or mailing, whichever is sooner, to the party or parties of record, or shall be effective on any date thereafter, as the delegated local agency may provide in the decision or order. The date of delivery or mailing shall be stamped on the face of the final decision or order. A final decision or order shall be considered a final agency action, and shall be appealable in the same manner as a final agency action of a State department or agency.
a. A person appealing a civil administrative penalty or assessment levied in accordance with section 2 of P.L.1991, c.8 (C.58:10A-10.5), whether contested as a contested case pursuant to P.L.1968, c.410 (C.52:14B-1 et seq.) or by appeal to a court of competent jurisdiction, shall, as a condition of filing the appeal, post with the delegated local agency a refundable bond, or other security approved by the delegated local agency, in the amount of the civil administrative penalty or assessment levied pursuant to a civil administrative hearing. If the civil administrative penalty or assessment is upheld in whole or in part, the delegated local agency shall be entitled to a daily interest charge on the amount of the judgment from the date of the posting of the security with the commissioner until that amount is paid in full. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
b. A person who is assessed a civil administrative penalty, or is subject to an assessment levied pursuant to section 2 of P.L.1991, c.8 (C.58:10A-10.5), and fails to contest or to pay the penalty or assessment, or fails to enter into a payment schedule with the delegated local agency within 30 days of the date that the penalty or assessment is due and owing, shall be subject to an interest charge on the amount of the penalty or assessment from the date that the amount was due and owing. The rate of interest shall be that authorized pursuant to subsection a. of this section.
c. Any person who fails to pay a civil administrative penalty or assessment, in whole or in part, when due and owing, or who fails to agree to a payment schedule therefor, shall be subject to the civil penalty provisions of subsection e. of section 10 of P.L.1977, c.74 (C.58:10A-10).
d. A civil administrative penalty or assessment imposed pursuant to a final order:
(1) may be collected or enforced by summary proceeding in a court of competent jurisdiction in accordance with the "penalty enforcement law," (N.J.S.2A:58-1 et seq.); or
(2) shall constitute a debt of the violator, and the civil administrative penalty may be docketed with the clerk of the Superior Court, and shall have the same standing as any judgment docketed pursuant to N.J.S.2A:16-1.
The Director of the Office of Administrative Law shall establish by regulation adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), a schedule of reimbursement for the costs to that office of an administrative hearing provided pursuant to P.L.1991, c.8 (C.58:10A-10.4 et seq.). Reimbursements shall be paid by the delegated local agency, but shall be recoverable from the violator by that agency, if the prevailing party, along with such other costs as may be recoverable for preparing and litigating the case. An assessment for hearing costs shall be included in the final decision or order issued by the head of the delegated local agency.
Whenever the commissioner finds that effluent limitations under a discharge permit, issued pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), are being exceeded by a county or municipal utilities authority organized pursuant to P.L.1957, c.183 (C.40:14B-1 et seq.), which provides disposal or discharge but not treatment of the effluent of one or more municipal treatment works, and the commissioner further finds that the violation of the effluent limitation is caused by effluents discharged by one or more municipal treatment works into the disposal facilities of the county or municipal utilities authority, the commissioner shall, in accordance with the provisions of subsection a. of section 10 of P.L.1977, c.74 (C.58:10A-10), issue an order for compliance to, or take such other action authorized thereunder against, the owner or operator of the municipal treatment works determined to be discharging pollutants into the utilities authority's facilities in violation of the discharge permit limitations of the municipal treatment works. The commissioner shall prescribe uniform sampling and reporting requirements for the county or municipal utilities authority and each of the municipal treatment works discharging effluents into the disposal facilities of the authority for the purpose of determining the source and extent of violation of permit requirements.
(1) occurs in the course of a permitted groundwater remedial action;
(2) is the first violation of that permit limitation; and
(3) involves an exceedance of a permit limitation that could not reasonably have been anticipated by the permittee, unless it is established by a preponderance of the evidence that the violation was the result of a negligent act or omission of the permittee.
Demonstration that an act or omission of a person performing groundwater remedial action accorded with generally accepted remedial action practices, and utilized the best technology reasonably available to the permittee for the approved remedial action at the time of the action, shall create a rebuttable presumption that the act or omission was not negligent.
b. An affirmative defense claim filed pursuant to subsection a. of this section shall be denied by the Department of Environmental Protection or a delegated local agency, as defined in section 3 of P.L.1977, c.74 (C.58:10A-3), as appropriate, if:
(1) the equipment used in the remedial action had not been properly maintained or was not being properly operated at the time of the violation, and the failure to properly maintain or operate the equipment was the proximate cause of the exceedance;
(2) the permittee fails, as required by law or rule or regulation, to provide in a prompt manner to the department or a delegated local agency:
(a) notification of the violation; and
(b) written information on the nature and extent of the permit exceedance and, if known, the reasons therefor;
(3) the permittee fails to take immediate measures, upon first becoming aware of the violation, to terminate the violation and to abate any adverse consequences therefrom; or
(4) the permittee fails to file with the department or delegated local agency a remedial action protocol, setting forth the procedures to be followed to prevent a recurrence of the exceedance.
c. A determination by the department or delegated local agency on an affirmative defense claim made pursuant to subsection a. of this section shall be considered final agency action on the matter for purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and paragraph (5) of subsection d. of section 10 of P.L.1977, c.74 (C.58:10A-10).
d. If the department approves an affirmative defense claim filed pursuant to subsection a. of this section, the permit exceedance shall not be considered a violation for the purposes of designating a person as a significant noncomplier under section 6 of P.L.1990, c.28 (C.58:10A-10.1).
e. Nothing in this section shall be construed to limit the authority of the department to adopt regulations or permit conditions for groundwater remedial actions that exempt a violation for which an affirmative defense claim may be filed pursuant to the provisions of this section, or for exceedances of one or more permit parameters occurring during the start-up phase of a remedial action, as defined in a permit.
As used in this section "groundwater remedial action" means the removal or abatement of one or more pollutants in a groundwater source.
Notwithstanding any contrary provision of State law, no person to whom the commissioner has delegated responsibility to approve permits or portions thereof may accept this responsibility if such person receives, or has received during the previous two years, a significant portion of his income directly or indirectly from permit holders or applicants for a permit.
This act shall be construed liberally. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are declared to be severable.
This act shall not affect, impair or invalidate any action or proceeding, civil or criminal, brought by or against the department, pending on the effective date of this act: all such actions or proceedings may and shall be continued to final judgment, decree or decision, as if the foregoing provisions had not taken effect; nor shall this act affect orders, rules and regulations heretofore made, promulgated or issued by the department or other matters or proceedings pending before the department on the effective date of this act. Such orders, rules, regulations, matters or proceedings shall continue in full force and effect until amended or repealed pursuant to law.
The Senate Committee on Energy and Environment and the Assembly Committee on Agriculture and Environment are hereby designated as the Legislative Oversight Committees for the Water Pollution Control Act. The Department of Environmental Protection is directed to submit any proposed rules or regulations to the Legislative Oversight Committees, prior to the holding of public hearings on such proposed rules or regulations and to promptly submit to either committee any information concerning the administration of said act which either Legislative Oversight Committee may request. The Legislative Oversight Committees shall review, evaluate and recommend alterations to any such proposed rules or regulations and shall recommend whatever administrative alterations it may choose in order to effectuate the Legislative intent of this act.
a. On or before March 15, 1992, and annually thereafter, the department shall prepare a report on implementation and enforcement actions taken during the preceding calendar year by the department and delegated local agencies pursuant to P.L.1977, c.74. Information in the report shall be compiled so as to distinguish, as applicable: enforcement actions taken by the department from those of delegated local agencies; violations of, and enforcement actions against, publicly owned treatment works from those of, or against, other permitted facilities; violations of effluent limitations from reporting violations--including discharging monitoring reports, compliance schedule progress reports, and pretreatment reports--and other violations; and violations of effluent limitations for hazardous pollutants from those for nonhazardous pollutants. The report shall be transmitted to the Governor, the members of the Legislature, the Assembly Environment Quality Committee and the Senate Energy and Environment Committee, or their successors, and to the Office of Legislative Services not later than March 31 of each year.
b. Within 30 days of publication of the report pursuant to this section, the commissioner shall transmit a written notice to at least one newspaper in each county, with circulation throughout that county which shall:
(1) Identify the owner, trade name and location of all facilities listed as significant noncompliers;
(2) Identify all of the significant noncompliers who have been assessed penalties pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1), the amount of the penalties assessed against, and the amount paid by, each significant noncomplier;
(3) Indicate the availability of the annual reports required under this section, and the address and phone number for securing copies.
a. The annual report provided pursuant to section 9 of P.L.1990, c.28 (C.58:10A-14.1) shall include, but need not be limited to, the following information for the preceding calendar year:
(1) the number of facilities permitted by the department or delegated local agencies pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.) as of the end of the calendar year, by surface water discharge permits;
(2) the number of new permits or permit renewals issued;
(3) the number of permit approvals contested by a permittee or other party;
(4) the number of permit modifications, other than permit renewals;
(5) the number of schedules of compliance adopted pursuant to administrative orders or administrative consent agreements involving interim enforcement limits that relax permit limitations;
(6) the number of facilities, including publicly owned treatment works, inspected at least once by the department or local agencies;
(7) the number of enforcement actions resulting from facility inspections;
(8) the number of actual permit violations;
(9) the number of actual effluent violations constituting serious violations, including violations that are being contested;
(10) the number of defenses for upsets, bypasses or testing or laboratory errors granted pursuant to section 7 of P.L.1990, c.28 (C.58:10A-10.2) that involved a serious violation;
(11) the number of permittees qualifying as significant noncompliers, including permittees contesting such designation;
(12) the number of unpermitted discharges;
(13) the number of pass throughs of pollutants;
(14) the number of enforcement orders--administrative and judicial--issued for violations;
(15) the number of violations for which civil penalties or civil administrative penalties have been assessed;
(16) the number of violations of administrative orders or administrative consent orders, including violations of interim enforcement limits, or of schedule of compliance milestones for starting or completing construction, or for failing to attain full compliance;
(17) the number of violations of schedules of compliance milestones for starting or completing construction, or attaining full compliance, that are out of compliance by 90 days or more from the date established in the compliance schedule;
(18) the dollar amount of all assessed civil penalties and civil administrative penalties;
(19) the dollar amount of enforcement costs recovered in a civil action or civil administrative action from a violator;
(20) the dollar amount of civil administrative penalties and civil penalties collected, including penalties for which a penalty schedule has been agreed to by the violator;
(21) The specific purposes for which penalty monies collected have been expended, displayed in line-item format by type of expenditure and including, but not limited to, position numbers and titles funded in whole or in part from these penalty monies; and
(22) the number of criminal actions filed by the Attorney General or county prosecutors pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10).
b. In addition to the information required pursuant to subsection a. of this section, the report shall:
(1) list the trade name of each permittee determined to be a significant noncomplier by the department or delegated local agency, and the address and permit number of the facility at which the violations occurred, and provide a brief description and the date of each violation, and the date that the violation was resolved, as well as the total number of violations committed by the permittee during the year;
(2) list the trade name of each permittee who is at least six months behind in the construction phase of a compliance schedule, as well as the address and permit number of the facility, and provide a brief description of the conditions violated and the cause of delay;
(3) list the trade name, address and permit number, of each permittee who has been convicted of criminal conduct pursuant to subsection f. of section 10 of P.L.1977, c.74 (C.58:10A-10), or who has had any officer or employee convicted thereunder, and provide a brief description and the date of the violation or violations for which convicted;
(4) list the name and location of any local agency that has failed to file with the department information required by section 11 of P.L.1990, c.28 (C.58:10A-14.3); and
(5) provide a summary assessment of the water quality of surface and ground waters affected by discharges subject to regulation pursuant to P.L.1977, c.74 to the extent that such information is not otherwise required to be submitted to the United States Environmental Protection Agency.
c. The department may include in the report any other information it determines would provide a fuller profile of the implementation and enforcement of P.L.1977, c.74. The department shall also include in the report any information that may be requested, in writing, not later than November 30 of the preceding year, for inclusion in the annual report, by the Assembly Environmental Quality Committee or the Senate Environmental Quality Committee, or their successors.
The department shall adopt guidelines to be utilized by delegated local agencies, the Attorney General and county prosecutors in providing information to the department for inclusion in the report to be prepared in accordance with section 10 of this act, and prescribing the format in which the information is to be provided. Every delegated local agency, the Attorney General, and each county prosecutor shall file with the department, not later than February 1 of each year, such information and in such form as may be required by the department. In the event that information required to be reported pursuant to this section is also required to be reported to the department within the immediately preceding 12 month period pursuant to another law, rule, regulation, or permit requirement, to the extent that identical information is required to be reported, the local agency shall be required only to resubmit the information that was previously reported to the department.
There is created, in the Department of Environmental Protection, a special nonlapsing fund, to be known as the "Clean Water Enforcement Fund." Except as otherwise provided in P.L.1989, c.122, all monies from penalties, fines, or recoveries of costs or improper economic benefits collected by the department pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) on and after the effective date of this section, or section 6 of P.L.1990, c.28 (C.58:10A-10.1) shall be deposited in the fund. Unless otherwise specifically provided by law, monies in the fund shall be utilized exclusively by the department for enforcement and implementation of the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) and P.L.1990, c.28 (C.58:10A-10.1 et al.). Any unobligated monies in the fund at the end of each fiscal year or monies not required for enforcement purposes in the next fiscal year shall be transferred to the "Wastewater Treatment Fund" established pursuant to subsection a. of section 15 of P.L.1985, c.329, for use in accordance with the provisions of that act.
There is created in the Department of Environmental Protection a special nonlapsing account, to be known as the "Wastewater Treatment Operators' Training Account." Monies deposited in the account shall be used to provide training, including continuing education, courses for wastewater treatment operators. A court shall order to be deposited into the account 10% of the amount of any penalty assessed and collected in an action brought by a local agency pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) or section 6 of P.L.1990, c.28 (C.58:10A-10.1), or by a public entity pursuant to section 7 of P.L.1972, c.42 (C.58:11-55).
There is established in the Department of Environmental Protection an Advisory Committee on Water Supply and Wastewater Licensed Operator Training. Committee members shall be appointed by the commissioner for three-year terms as follows: four members who shall be representatives of the department; two members who shall be representatives selected from a list prepared by the New Jersey Section American Water Works Association; one member who shall be a licensed operator; two members of the Water Pollution Control Association; two members who shall be selected from a list prepared by the Authorities Association of New Jersey, one of whom shall be from a water authority, and one from a wastewater treatment authority; one member who shall be selected from a list prepared by the New Jersey Business and Industry Council; three members who shall be selected from a list prepared by educational institutions in the State conducting courses in water supply or wastewater treatment operations, or which conducted an appropriate course in the immediately preceding academic year, one of whom shall be the Director of the Office of Continuing Professional Education at Cook College, the State University of Rutgers; and two members who shall be selected from environmental groups in the State actively concerned or involved in water quality or wastewater treatment. Vacancies shall be filled in the same manner as the original appointment for the unexpired term.
The advisory committee shall meet at least once a year, and shall organize itself in such manner and hold its meetings in such places as it deems most suitable. The department shall provide staff assistance to the advisory committee, to the extent that monies are available therefor.
The advisory committee shall advise the department on the training and licensing of water supply and wastewater treatment operators and on related matters, or on any other matter referred to it by the department. The advisory committee shall review the training programs for, and identify the training needs of, water supply and wastewater treatment operators, and shall approve the annual allocations of monies for wastewater treatment operators' training programs from sums available in the "Wastewater Treatment Operators' Training Account," established pursuant to section 13 of P.L.1990, c.28 (C.58:10A-14.5).
The Legislature finds that certain halogenated hydrocarbon chemicals and aromatic hydrocarbon chemicals used as sewage system cleaners are a significant and unnecessary source of water pollution and groundwater contamination. These chemicals are toxic and generally nonbiodegradable. When used to unblock sewage systems they are introduced into the groundwater where they have adverse effects on the health and environment of the citizens of this State. It is declared to be the policy of this State to eliminate the introduction of these toxic chemicals into the groundwaters of this State.
As used in this act:
a. "Sewage system cleaner" means any solid or liquid material intended or used primarily for the purpose of cleaning, treating, degreasing, unclogging, disinfecting or deodorizing any part of a sewage system but excluding those liquid or solid products intended or used primarily for manual cleaning, scouring, treating, deodorizing or disinfecting the surfaces of common plumbing fixtures.
b. "Sewage system" means any part of a wastewater disposal system, including but not limited to all toilets, piping, drains, sewers, septic tanks, distribution boxes, absorption fields, seepage pits, cesspools, and dry wells.
c. "Restricted chemical material" means any chemical material which contains concentrations in excess of one part per hundred, by weight of (1) any halogenated hydrocarbon chemical, aliphatic or aromatic, including but not limited to trichloroethane, trichloroethylene, tetrachloroethylene, methylene chloride, halogenated benzenes and carbon tetrachloride; (2) any aromatic hydrocarbon chemical, including but not limited to benzene, toluene, and naphthalene; (3) any phenol derivative in which a hydroxyl group and two or more halogen atoms are bonded directly to a six-carbon aromatic ring, including but not limited to trichlorophenol or pentachlorophenol; or (4) acrolein, acrylonitrile, or benzidine. Restricted chemical material does not, however, include any chemical material which is (1) biodegradable and (2) not a significant source, of contamination of the groundwaters of the State.
a. No person shall distribute, sell, offer or expose for sale in this State any sewage system cleaner containing any restricted chemical material.
b. No person shall use, introduce or apply or cause any other person to use, introduce or apply in any sewage system, surface waters, or groundwaters, any sewage system cleaner containing any restricted chemical material.
a. The commissioner shall, within 90 days of the effective date of this act, promulgate regulations establishing methods for identification and quantification of ingredients in sewage system cleaners containing any restricted chemical material.
b. The commissioner shall, within 180 days of the effective date of this act, promulgate regulations requiring manufacturers of sewage system cleaners distributed, sold or offered for sale in this State to furnish to the commissioner any existing information regarding chemical components of such products, including the nature and extent of investigations and research performed by the manufacturer concerning the effects of such products on the quality of the groundwaters of the State, provided that, in lieu of furnishing this information, the manufacturers may refer the commissioner to any available information which has already been obtained by any Federal or State agency.
c. Whenever the commissioner finds, after investigation and public hearing, that any ingredient other than a restricted chemical material in a sewage system cleaner distributed, sold, offered or exposed for sale in this State is shown to be dangerous, deleterious or injurious to the public health in its impact on the quality of the groundwaters of the State, he shall prohibit or restrict the sale, distribution, offer or exposure for sale or use by any person of sewage system cleaners containing such ingredients.
d. Whenever the commissioner finds, after investigation and public hearing, that any restricted chemical material will not be dangerous, deleterious or injurious to the public health in its impact on the quality of the groundwaters of the State when used in a sewage system cleaner, he may authorize the use of such chemical material in such products.
The commissioner shall hold confidential any information obtained pursuant to subsection b. of section 4 of this act when shown by any manufacturer that the information, if made public, would divulge competitive business information, methods or processes entitled to protection as trade secrets of the manufacturer.
Any person who violates any provision of this act or any rule or regulation promulgated hereunder shall be subject to the provisions of P.L.1977, c. 74, s. 10 (C. 58:10A-10).
The Legislature finds and declares that millions of gallons of gasoline and other hazardous substances are stored prior to use or disposal, in underground storage tanks; that a significant percentage of these underground storage tanks are leaking due to corrosion or structural defect; that this leakage of hazardous substances from underground storage tanks is among the most common causes of groundwater pollution in the State; and that it is thus necessary to provide for the registration and the systematic testing and monitoring of underground storage tanks to detect leaks and discharges as early as possible and thus minimize further degradation of potable water supplies. The Legislature further finds and declares that with the enactment by the United States Congress of the "Hazardous and Solid Waste Amendments of 1984," Pub.L. 98-616 (42 U.S.C. s. 6991) it is necessary to authorize the Department of Environmental Protection to adopt a regulatory program that permits the delegation of the authority to carry out the federal act, but also recognizes the need of this State to protect its natural resources in the manner consistent with well-established environmental principles.
a. "Commissioner" means the Commissioner of the Department of Environmental Protection;
b. "Department" means the Department of Environmental Protection;
c. "Discharge" means the intentional or unintentional release by any means of hazardous substances from an underground storage tank into the environment;
d. "Facility" means one or more underground storage tanks;
e. "Hazardous substances" means motor fuels and those elements and compounds, including petroleum products which are liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), which are defined as hazardous substances by the department after public hearing, and which shall be consistent to the maximum extent possible with and which shall include the list of hazardous wastes adopted by the United States Environmental Protection Agency pursuant to section 3001 of the "Resource Conservation and Recovery Act of 1976," Pub.L.94-580 (42 U.S.C. s.6921), the list of hazardous substances adopted by the United States Environmental Protection Agency pursuant to section 311 of the "Federal Water Pollution Control Act Amendments of 1972," Pub.L.92-500 (33 U.S.C. s.1321), the list of toxic pollutants designated by Congress or the Environmental Protection Agency pursuant to section 307 of that act (33 U.S.C. s.1317), and any substance defined as a hazardous substance pursuant to section 101(14) of the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub.L.96-510 (42 U.S.C. s.9601);
f. "Leak" means the release of a hazardous substance from an underground storage tank into a space created by a method of secondary containment wherein it can be detected by visual inspection or a monitoring system before it enters the environment;
g. "Monitoring system" means a system capable of detecting leaks or discharges, or both, other than an inventory control system, used in conjunction with an underground storage tank, or a facility, conforming to criteria established pursuant to section 5 of this act;
h. "Nonoperational storage tank" means any underground storage tank in which hazardous substances are not contained, or from which hazardous substances are not dispensed;
i. "Operator" means any person in control of, or having responsibility for, the daily operation of a facility;
j. "Owner" means any person who owns a facility, or in the case of a nonoperational storage tank, the person who owned the nonoperational storage tank immediately prior to the discontinuation of its use;
k. "Person" means any individual, partnership, company, corporation, consortium, joint venture, commercial or any other legal entity, the State of New Jersey, or the United States Government;
l. "Residential building" means a single and multi-family dwelling, nursing home, trailer, condominium, boarding house, apartment house, or other structure designed primarily for use as a dwelling;
m. "Secondary containment" means an additional layer of impervious material creating a space wherein a leak of hazardous substances from an underground storage tank may be detected before it enters the environment;
n. "Substantially modify" means construction at, or restoration, refurbishment or renovation of, an existing facility which increases or decreases the in-place storage capacity of the facility or alters the physical configuration or impairs or affects the physical integrity of the facility or its monitoring systems;
o. "Test" or "testing" means the testing of underground storage tanks in accordance with standards adopted by the department;
p. "Underground storage tank" means any one or combination of tanks, including appurtenant pipes, lines, fixtures, and other related equipment, used to contain an accumulation of hazardous substances, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10% or more below the ground. "Underground storage tank" shall not include:
(1) Farm or residential tanks of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;
(2) Tanks used to store heating oil for on-site consumption in a nonresidential building with a capacity of 2,000 gallons or less;
(3) Tanks used to store heating oil for on-site consumption in a residential building;
(4) Septic tanks installed in compliance with regulations adopted by the department pursuant to "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.);
(5) Pipelines, including gathering lines, regulated under the "Natural Gas Pipeline Safety Act of 1968," Pub.L.90-481 (49 U.S.C. s.1671 et seq.), the "Hazardous Liquid Pipeline Safety Act of 1979," Pub.L.96-129 (49 U.S.C. s.2001 et seq.), or intrastate pipelines regulated under State law;
(6) Surface impoundments, pits, ponds, or lagoons, operated in compliance with regulations adopted by the department pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.);
(7) Storm water or wastewater collection systems operated in compliance with regulations adopted by the department pursuant to the "Water Pollution Control Act";
(8) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;
(9) Tanks situated in an underground area, including, but not limited to, basements, cellars, mines, drift shafts, or tunnels, if the storage tank is situated upon or above the surface of the floor, or storage tanks located below the surface of the ground which are equipped with secondary containment and are uncovered so as to allow visual inspection of the exterior of the tank; and
(10) Any pipes, lines, fixtures, or other equipment connected to any tank exempted from the provisions of this act pursuant to paragraphs (1) through (9) of this subsection;
q. "Wellhead protection area" means an aquifer area described in a plan view around a well, from within which groundwater flows to the well and through which groundwater pollution, if it occurs, may pose a significant threat to the water quality of the well. The wellhead protection area is delimited by the use of time-of-travel and hydrologic boundaries;
r. "Unregulated heating oil tank" means any one or combination of tanks, including appurtenant pipes, lines, fixtures, and other related equipment, used to contain an accumulation of heating oil for on-site consumption in a residential building, or those tanks with a capacity of 2,000 gallons or less used to store heating oil for on-site consumption in a nonresidential building, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10% or more below the ground.
b. The commissioner shall, within 120 days of the effective date of this act and pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to provide for the registration of all facilities in the State, prescribing the forms and procedures therefor.
This registration shall require the following:
(1) The name and address of the owner and operator of the facility;
(2) A site plan of the facility indicating the number and location of the underground storage tanks;
(3) The date of installation of each of the underground storage tanks;
(4) Any other relevant information requested by the commissioner.
These rules and regulations shall provide for the periodic, but in no case more frequent than annual, certification by the owner or operator of the facility that the information contained on the registration remains unchanged. The owner or operator of a facility shall, within 30 days of completing the activities for which a permit was acquired pursuant to section 4 of this act, register or reregister, as the case may be, in accordance with the provisions of this section.
An owner or operator of a facility proposing to replace, install, expand or substantially modify the facility shall obtain a permit therefor from the commissioner. The commissioner shall not issue a permit unless the owner or operator demonstrates that:
a. The facility is constructed of materials that meet or exceed the standards contained in, and is installed in a manner consistent with, the State Uniform Construction Code adopted pursuant to the "State Uniform Construction Code Act," P.L. 1975, c. 217 (C. 52:27D-119 et seq.) and with the rules and regulations adopted pursuant to this act;
b. The facility is equipped with either an approved method of secondary containment or a monitoring system;
c. The facility utilizes corrosion control features necessary to protect the structural integrity of underground storage tanks susceptible to corrosion.
b. Subsection a. of this section shall not apply to a person performing tank closure on an underground storage tank located on a farm or an unregulated heating oil tank located on a farm. A person performing tank closure on an underground storage tank located on a farm or an unregulated heating oil tank located on a farm shall comply with the guidelines and the criteria established pursuant to subsection c. of this section. For the purposes of this section, "farm" shall mean land that qualifies for a special tax assessment pursuant to the "Farmland Assessment Act of 1964," P.L.1964, c.48 (C.54:4-23.1 et seq.), or any land less than five acres in area that would otherwise qualify for that farmland assessment and that has produced agricultural or horticultural products with a wholesale value of $10,000 or more annually for at least the two successive years immediately preceding the year in which the tank removal is performed.
c. Within 90 days of the effective date of P.L.1997, c.430, the department shall implement guidelines establishing a protocol for the performance of tank closures on a farm. Within 18 months of the effective date of P.L.1997, c.430, the Department of Environmental Protection, in consultation with the Department of Agriculture and the State Soil Conservation Committee, shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt criteria for the performance of tank closures on farms. Both the guidelines and the criteria shall be developed with the objectives of reducing the cost and increasing the efficiency of the process of tank closure while also ensuring environmental protection and public safety.
b. Except as provided pursuant to subsection b. of section 1 of P.L.1991, c.123 (C.58:10A-24.1), any service performed on an underground storage tank at an underground storage tank site for the purpose of complying with the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), or tank testing, tank installation, tank removal, tank closure, or subsurface evaluations for corrective action, closure or corrosivity on an unregulated heating oil tank, shall be performed by, or under the immediate on-site supervision of, a person certified by the department in accordance with section 3 of P.L.1991, c.123 (C.58:10A-24.3).
c. A business firm or other person performing well drilling or pump installation services at the site of an underground storage tank or an unregulated heating oil tank who is licensed to perform such services pursuant to section 7 of P.L.1947, c.377 (C.58:4A-11), shall not be required to be certified pursuant to section 3 of P.L.1991, c.123 (C.58:10A-24.3), or to perform those services under the supervision of a person certified thereunder.
d. Professional engineers licensed pursuant to P.L.1938, c.342 (C.45:8-27 et seq.) shall be exempt from the certification requirements of section 3 of P.L.1991, c.123 (C.58:10A-24.3) and from the payment of a recertification or renewal fee required pursuant to section 4 of that act (C.58:10A-24.4), but shall be required to obtain a certification card issued by the department at no charge and to make the card available for inspection by a State or local official when performing tank services on an underground storage tank at an underground storage tank site or on an unregulated heating oil tank. Professional engineers exempt pursuant to this subsection shall be required to attend a department approved training course on the department's rules and regulations concerning underground storage tanks within one year of certification or recertification.
e. A plumbing contractor, as defined pursuant to section 2 of P.L.1968, c.362 (C.45:14C-2), engaged in the installation, repair, testing, or closure of a waste oil underground storage tank shall be exempt from the certification requirements of section 3 of P.L.1991, c.123 (C.58:10A-24.3) and from payment of a recertification or renewal fee required pursuant to section 4 of that act (C.58:10A-24.4), but shall be required to obtain a certification card issued by the department at no charge and to make the card available for inspection by a State or local official when performing tank services on an underground storage tank. Plumbing contractors exempt pursuant to this subsection shall be required to attend a department approved training course on the department's rules and regulations concerning underground storage tanks within one year of certification or recertification. A plumbing contractor engaged in the installation, repair, testing, or closure of an unregulated heating oil tank or an underground storage tank that is not a waste oil tank shall be required to comply with section 3 of P.L.1991, c.123 (C.58:10A-24.3).
b. Notwithstanding the provisions of subsection a. of this section, any person who files, within 300 days of the effective date of this act, an application for certification under this subsection, and demonstrates to the department that he or she has adequately performed services on underground storage tanks at underground storage tank sites for at least five consecutive years immediately preceding the filing of the application, shall be certified without examination upon payment of an application and certification fee. Within one year of certification, a person certified pursuant to this subsection shall submit to the department evidence of attendance at a department approved training course on the department's rules and regulations concerning underground storage tanks. One year from the effective date of this act, no person applying for certification pursuant to this subsection shall perform services requiring certification until certified by the department.
c. A person certified pursuant to subsection b. of this section shall comply with the examination and other requirements adopted by the department pursuant to subsection a. of this section as a precondition for filing for a renewal of a certification issued pursuant to subsection b. of this section.
d. The department may establish a general certification for tank services and on-site supervisory responsibilities, and such other classes of certification for particular tank services or for on-site supervisory responsibilities as it deems appropriate, and may establish separate training, examination and working experience requirements therefor. The department shall establish a separate certification for tank testing, tank installation, tank removal, tank closure, and subsurface evaluations for corrective action, closure or corrosivity on unregulated heating oil tanks with separate training and examination requirements therefor. The certification program for persons who perform services on underground storage tanks or on unregulated heating oil tanks shall include standards for pricing, customer service, compliance with applicable rules and regulations, adequate submissions to the department, and any other standards relevant to the performance, qualifications, and business practices of persons or business firms seeking certification. Any person certified to perform services on underground storage tanks at underground storage tank sites for purposes of complying with the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.) shall not be required to obtain a separate certification to perform work on unregulated heating oil tanks.
b. As a condition of certification or recertification, a business firm shall be required to provide the department with evidence of financial responsibility for the performance of services provided pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), for the performance of tank testing, tank installation, tank removal, tank closure, or subsurface evaluations for corrective action, closure or corrosivity on unregulated heating oil tanks, and for the cleanup or mitigation of a hazardous substance discharge resulting from the performance of such services. Financial responsibility shall be in an amount to be determined by the department but in no case less than $250,000. Financial responsibility may be in the form of insurance, a surety bond, letter of credit, or other security posted with the department, or self-insurance, as may be prescribed by the department. If the financial responsibility is in the form of insurance, a surety bond, or similar device, the business firm shall promptly notify the department of any cancellation or change in coverage. Financial responsibility in the amount and form required by the department shall be maintained for the term of certification by the business firm.
A copy of the certification shall be conspicuously displayed for public review in the business office of a firm engaged in tank testing, tank installation, tank removal, tank closure, or subsurface evaluations for corrective action, closure or corrosivity on unregulated heating oil tanks or engaged in providing services for underground storage tanks at underground storage tank sites. If a firm maintains a business office at more than one location, the certification shall be conspicuously displayed at each location.
(1) a violation, or abetting another to commit a violation, of any provision of this act, or of P.L.1986, c.102 (C.58:10A-21 et seq.), or rule or regulation adopted, or order issued under either act;
(2) making a false statement on an application for certification or other information required by the department pursuant to this act, or P.L.1986, c.102;
(3) misrepresentation or the use of fraud in obtaining certification , in performing tank testing, tank installation, tank removal, tank closure, or subsurface evaluations for corrective action, closure or corrosivity on an unregulated heating oil tank, or in performing underground storage tank services;
(4) failure to meet the standards or requirements of the certification program, including standards relevant to the performance, qualifications, and business practices of persons or business firms who perform tank services.
b. Before suspending, revoking, or refusing to renew a certification, the department shall afford the applicant or certificate holder an opportunity to be heard in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. Suspension, revocation, or refusal to renew a certification shall not bar the department from pursuing against the applicant or certificate holder any other lawful remedy available to the department.
d. Any business firm or person whose certification is revoked shall be ineligible to apply for certification for three years from the date of the revocation.
e. If the department has reason to believe that a condition exists that poses an imminent threat to the public health, safety or welfare, it may order the certificate holder to cease operations pending the outcome of the hearing.
a. If a person violates any of the provisions of this act or any rule or regulation adopted, or order issued, thereunder, the department may institute a civil action in a court of competent jurisdiction for injunctive or other appropriate relief to prohibit and prevent the violation, and the court may proceed in the action in a summary manner.
b. Any person who violates the provisions of this act, or any rule or regulation adopted, or order issued, hereunder, is liable to a civil administrative penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day of violation subsequent to receipt of an order to cease the violation constitutes an additional, separate and distinct offense. No civil administrative penalty shall be levied except subsequent to the notification of the violator by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute the violation; a statement of the amount of the civil penalty to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of notice within which to deliver to the department a written request for a hearing. Subsequent to the hearing and upon a finding that a violation has occurred, the department may issue a final order assessing the amount of the penalty. If no hearing is requested, the notice shall become a final order upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. Agreement to, or payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.
c. Any person who violates the provisions of this act, is liable to a civil penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. Any person violating an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty when due and owing as provided in subsection b. of this section, is subject to a civil penalty not to exceed $25,000 per day of the violation. Each day's continuance of a violation constitutes a separate and distinct violation. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Law Division of the Superior Court shall have jurisdiction to enforce "the penalty enforcement law."
d. The department may compromise and settle any claim for a penalty under this section in such amount as the department may determine to be appropriate and equitable under all of the circumstances.
e. Any person who fails to contest or to pay, in whole or in part, a penalty imposed pursuant to this section, or who fails to agree to a payment schedule therefor, within 30 days of the date that the penalty is due and owing, shall be subject to an interest charge on the amount of the penalty from the date that the amount was due and owing. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
f. The penalty provisions of this section shall be in addition to such penalties as may be assessable pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32) for violations of that act.
g. All penalties, monies, and any interest thereon, assessed and collected pursuant to this section shall be deposited into the "New Jersey Spill Compensation Fund," established pursuant to section 10 of P.L.1976, c.141 (C.58:10-23.11i) for use for any of the authorized purposes of the fund. The provisions of this subsection shall not apply to penalties assessed and collected pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32).
b. Upon the adoption of interim rules and regulations pursuant to this section, a grant or loan from the fund to close or replace an unregulated heating oil tank may only be made to reimburse the applicant for work performed by a person certified pursuant to section 3 of P.L.1991, c.123 (C.58:10A-24.3).
(1) Establish a schedule for the testing of all facilities, taking into account the age of the underground storage tank, the hazardous substance stored therein, the proximity of the underground storage tank to potable water supplies, and the soil resistivity and other corrosive conditions which may precipitate a discharge, and for the periodic testing for structural integrity of facilities utilizing secondary containment which do not incorporate a monitoring system, and the reporting of results thereof to the department;
(2) Establish standards for the construction, installation, and operation of new and existing underground storage tanks, including standards for secondary containment, monitoring systems, release detection systems, corrosion protection, spill prevention, and overfill prevention, and other underground storage tank equipment. The standards adopted pursuant to this paragraph shall be substantially identical to the relevant standards adopted by the United States Environmental Protection Agency pursuant to 42 U.S.C. s.6991 et seq. for the regulation of underground storage tanks. The standards adopted by the department for any underground storage tank not regulated pursuant to 42 U.S.C. s.6991 et seq. shall not be more stringent than the standards adopted by the United States Environmental Protection Agency for underground storage tanks regulated pursuant to 42 U.S.C. s.6991 et seq. Notwithstanding any other provision in this paragraph to the contrary, standards adopted by the department for any underground storage tank located in a wellhead protection area may be more stringent than the standards adopted by the United States Environmental Protection Agency for underground storage tanks pursuant to 42 U.S.C. s.6991 et seq.;
(3) (Deleted by amendment, P.L.1994, c.14).
(4) Require the maintaining of records of any monitoring or leak detection system, inventory control system or underground storage tank testing system;
(5) Require the reporting of any discharges and the corrective action taken in response to a discharge from an underground storage tank;
(6) Require the taking of corrective action in response to a discharge from an underground storage tank by the owner or operator of the underground storage tank;
(7) Require the owner or operator of an underground storage tank to prepare plans for the closure of an underground storage tank to prevent the future discharge of hazardous substances into the environment;
(8) Require the maintaining of evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by a discharge; and
(9) (Deleted by amendment, P.L.1994, c.14).
(10) Require the notification of the department and local agencies of the existence of any operational or nonoperational underground storage tanks.
b. In developing the regulations required pursuant to this section the department shall consider the regulations concerning underground storage tanks adopted by the United States Environmental Protection Agency pursuant to the "Hazardous and Solid Waste Amendments of 1984," Pub.L.98-616 (42 U.S.C. s.6991 et al.) and shall use the recommendations and standard procedures of the following organizations:
(1) American Petroleum Institute (API), 1220 L Street, N.W., Washington, D.C. 20005;
(2) American Society for Testing and Materials (ASTM), 1916 Race Street, Philadelphia, Pennsylvania 19103;
(3) NACE International, P.O. Box 218340, Houston, Texas 77218;
(4) National Fire Protection Association (NFPA), 1 Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269; and
(5) Underwriters Laboratories (UL), 333 Pfingston Road, Northbrook, Illinois 60062.
c. The Department of Community Affairs shall adopt in the State Uniform Construction Code the rules and regulations adopted by the department pursuant to this section within 60 days.
Monitoring systems shall be installed, maintained, and operated in accordance with the manufacturer's requirements. Each monitoring system shall be inspected at least monthly to determine that it is functionally unimpaired.
The owner or operator of a facility shall maintain inventory records for each underground storage tank which shall, at a minimum, record daily hazardous substance transfers and a periodic average. These records shall be maintained at the site of the facility for at least one year.
a. If the inventory records maintained pursuant to section 7 of this act or a monitoring system indicates a leak or discharge, the owner or operator of the facility shall, within 24 hours of discovery, notify the department and the appropriate local health agencies of the leak or discharge.
b. Upon notification, the department shall promptly conduct an inspection to determine the extent and impacts of the leak or discharge.
c. Upon a finding that the leak or discharge is not an imminent threat to the proximate groundwater resources or public health or safety, the commissioner shall order the owner of the underground storage tank to remove, replace, or repair the underground storage tank, establish a date by which the removal, replacement, or repair shall be effected, and take any other action, or require the owner of the tank to take any action, necessary to abate, contain, clean up, or remove, or any combination thereof, the leak or discharge.
d. Upon a finding that the leak or discharge has entered or threatens groundwater resources or public health or safety, the commissioner shall order the immediate removal of the contents of the underground storage tank, and shall take, or require the owner of the underground storage tank to take, all other appropriate actions necessary to abate, contain, clean up, or remove, or any combination thereof, the discharge.
e. If the commissioner provides for the removal, replacement or repair of an underground storage tank by any person other than the owner, or takes other appropriate actions necessary to mitigate the adverse effects of a leak or discharge, the costs of these measures shall be borne by the owner of the underground storage tank.
b. Notwithstanding the provisions of subsection a. of this section to the contrary, and except as provided in section 2 of P.L.1998, c.59 (C.58:10A-29.1), the deadline for compliance for underground storage tanks with a capacity of over 2,000 gallons used to store heating oil for onsite consumption in a non-residential building shall be five years after the deadline established pursuant to subsection a. of this section.
The department shall have the authority to enter, at reasonable hours, any property or place of business where underground storage tanks or nonoperational storage tanks are or may be located to inspect any underground storage tank or nonoperational storage tank, and to photograph any records related to the operation of an underground storage tank or a nonoperational storage tank; to obtain samples or evidence of a discharge from any underground storage tank or nonoperational storage tank, or from the surrounding air, soil, or surface or groundwater; and to conduct monitoring or testing of any underground storage tank or nonoperational storage tank or the surrounding air, soil or surface or groundwater. The owner or operator of a facility or a nonoperational storage tank shall allow and cooperate with any action taken by the department pursuant to the provisions of this section.
Registration fees shall be established for subsequent registrations and shall not exceed the estimated yearly cost of implementing the provisions of this act. The commissioner may consider the size, contents and the location of the underground storage tanks in establishing these fees. The fee that may be imposed upon the owner or operator of a facility which comprises only two or more tanks used to store heating oil for on-site consumption in a residential building, where no individual tank has a capacity of more than 2,000 gallons, may not exceed $100 for that facility for an initial registration or a renewal thereof. These fees shall be deposited in the General Fund. The Legislature shall annually appropriate to the department an amount equivalent to the amount anticipated to be collected as fees charged under this section for the purposes of administering the provisions of this act.
A person violating the provisions of this act is liable to the penalties prescribed in section 10 of P.L. 1977, c. 74 (C. 58:10A-10).
The owner or operator of a facility equipped with a monitoring system who has obtained a permit for groundwater discharges pursuant to section 6 of P.L. 1977, c. 74 (C. 58:10A-6) is exempt from the requirements of section 9 of this act.
Nothing in this act shall be construed to limit the department's authority to respond to, or remove or clean up, a discharge pursuant to the provisions of any other State or federal law.
a. It is the intent of the Legislature that the program established by this act for the regulation of underground storage tanks constitute the only program regulating underground storage tanks in this State. To this end no municipality, county, or political subdivision thereof shall enact any law or ordinance regulating underground storage tanks, and, further, the enactment of this act shall supersede any law or ordinance regulating underground storage tanks enacted by a municipality, county or political subdivision thereof prior to the enactment of this act.
b. However, the department shall develop criteria for determining in which case a municipal ordinance more stringent than the provisions of this act is warranted. If the conditions in the municipality are deemed to meet the criteria developed pursuant to this subsection, the ordinance is hereby deemed to be effective and not preempted and the municipality may enforce and administer its provisions. The department shall have 180 days to determine whether an ordinance meets the criteria developed pursuant to this section.
c. Any municipality, county or political subdivision may petition the department for a modification of any rule adopted under this act. The petition shall be forwarded to the department together with a written statement setting forth all provisions of the municipal ordinance which differ from the criteria identified, the reasons for the differences, and all supporting facts and data. The department shall evaluate the petition using the criteria adopted under subsection b. of this section and accept or reject the petition in a written statement which shall include the basis for the department's determination.
When the department determines that a rule change is justified it shall evaluate the applicability of that rule change on a regional or areawide basis and modify the rules to provide areawide requirements as appropriate.
"Applicant" means a person who files an application for financial assistance from the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund for payment of eligible project costs of a remediation due to a discharge of petroleum from a petroleum underground storage tank, for payment of eligible project costs of a replacement or closure of a petroleum underground storage tank that is not regulated pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.) or 42 U.S.C. s.6991 et seq., and for payment of eligible project costs of an upgrade or closure of a regulated tank;
"Authority" means the New Jersey Economic Development Authority established pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.);
"Closure" means the proper closure or removal of a petroleum underground storage tank necessary to meet all regulatory requirements of federal, State, or local law;
"Commissioner" means the Commissioner of Environmental Protection;
"Department" means the Department of Environmental Protection;
"Discharge" means the intentional or unintentional release by any means of petroleum from a petroleum underground storage tank into the environment;
"Eligible owner or operator" means (1) any owner or operator, other than the owner or operator of a petroleum underground storage tank storing heating oil for onsite consumption in a residential building, who owns or operates less than 10 petroleum underground storage tanks in New Jersey, who has a net worth of less than $3,000,000 and who demonstrates to the satisfaction of the authority, the inability to qualify for and obtain a commercial loan for all or part of the eligible project costs, (2) the owner or operator of a petroleum underground storage tank storing heating oil for onsite consumption in a residential building, (3) a public entity who owns or operates a petroleum underground storage tank in New Jersey, (4) an independent institution of higher education that owns or operates a petroleum underground storage tank, or (5) a nonprofit organization, corporation, or association with not more than 100 paid individuals that is qualified for exemption from federal taxation pursuant to section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C.s.501(c)(3), or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad;
"Eligible project costs" means the reasonable costs for equipment, work or services required to effectuate a remediation, an upgrade, or a closure which equipment, work or services are eligible for payment from the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund. In the case of an upgrade or closure of a regulated tank, eligible project costs shall be limited to the cost of the minimal effective system necessary to meet all the regulatory requirements of federal and State law except that an eligible owner or operator who has met the upgrade requirements pursuant to 42 U.S.C. s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.) may be awarded a loan which shall not be limited to the cost of a minimal effective system, in order to finance the costs of the improvement or replacement of tanks to meet State and federal standards as provided in subsection g. of section 5 of P.L.1997, c.235 (C.58:10A-37.5). The limitation of eligible project costs to the minimal effective system shall not be construed to deem ineligible those project costs expended to replace a regulated tank rather than to improve the regulated tank. An owner or operator may perform an upgrade or a closure beyond the minimal effective system in which case the eligible project costs that may be awarded from the fund as financial assistance in the form of a grant shall be that amount that would represent the cost of a minimal effective system. In the case of a remediation, replacement, or closure of a petroleum underground storage tank that is unregulated pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.) or 42 U.S.C. s.6991 et seq., eligible project costs shall include the cost to replace a tank with an above-ground or underground storage tank. In the case of a remediation, eligible project costs shall not include the cost to remediate a site to meet residential soil remediation standards if the local zoning ordinances adopted pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) do not allow for residential use. Eligible project costs shall include the cost of a preliminary assessment and site investigation, even if performed prior to the award of financial assistance from the fund if the preliminary assessment and site investigation were performed after the effective date of P.L.1997, c.235;
"Facility" means one or more operational or nonoperational petroleum underground storage tanks under single ownership at a common site;
"Financial assistance" means a grant or loan or a combination of both that may be awarded by the authority from the fund to an eligible owner or operator as provided in section 5 of P.L.1997, c.235 (C.58:10A-37.5);
"Independent institution of higher education" means those institutions of higher education incorporated and located in this State, which, by virtue of law or character or license, are nonprofit educational institutions empowered to grant academic degrees and which provide a level of education which is equivalent to the education provided by the State's public institutions of higher education as attested by the receipt of and continuation of regional accreditation by the Middle States Association of Colleges and Schools, and which are eligible to receive State aid under the provisions of the Constitution of the United States and the Constitution of the State of New Jersey. "Independent institution of higher education" does not include any educational institution dedicated primarily to the preparation or training of ministers, priests, rabbis, or other professional persons in the field of religion;
"Operator" means any person in control of, or having responsibility for, the daily operation of a facility;
"Owner" means any person who owns a facility;
"Person" means any individual, partnership, corporation, society, association, consortium, joint venture, commercial entity, or public entity, but does not include the State or any of its departments, agencies or authorities;
"Petroleum" means all hydrocarbons which are liquid at one atmosphere pressure (760 millimeters or 29.92 inches Hg) and temperatures between -20 F and 120 F (-29 C and 49 C), and all hydrocarbons which are discharged in a liquid state at or nearly at atmospheric pressure at temperatures in excess of 120 F (49 C) including, but not limited to, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oil, and purified hydrocarbons that have been refined, re-refined, or otherwise processed for the purpose of being burned as a fuel to produce heat or usable energy or which is suitable for use as a motor fuel or lubricant in the operation or maintenance of an engine;
"Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund" or "fund" means the fund established pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3);
"Petroleum underground storage tank" means a tank of any size, including appurtenant pipes, lines, fixtures, and other related equipment, that normally and primarily stores petroleum, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10% or more below the ground. "Petroleum underground storage tank" does not include:
(1) Septic tanks installed or regulated pursuant to regulations adopted by the department pursuant to "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.) or the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.);
(2) Pipelines, including gathering lines, regulated under 49 U.S.C. s.60101 et seq., or intrastate pipelines regulated under State law;
(3) Surface impoundments, pits, ponds, or lagoons, operated or regulated pursuant to regulations adopted by the department pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.);
(4) Storm water or wastewater collection systems operated or regulated pursuant to regulations adopted by the department pursuant to the "Water Pollution Control Act";
(5) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;
(6) Tanks situated in an underground area, including, but not limited to, basements, cellars, mines, drift shafts, or tunnels, if the storage tank is situated upon or above the surface of the floor, or storage tanks located below the surface of the ground which are equipped with secondary containment and are uncovered so as to allow visual inspection of the exterior of the tank; and
(7) Any pipes, lines, fixtures, or other equipment connected to any tank exempted from the provisions of this definition pursuant to paragraphs (1) through (6) above;
"Public entity" means any county, municipality, or public school district, but shall not include any authority created by those entities;
"Regulated tank" means a petroleum underground storage tank that is required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.) or 42 U.S.C. s.6991 et seq.;
"Remediation" means all necessary actions to investigate and clean up any known, suspected, or threatened discharge of petroleum, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1);
"Upgrade" means the replacement of a regulated tank, the installation of secondary containment, monitoring systems, release detection systems, corrosion protection, spill prevention, or overfill prevention therefor, or any other necessary improvement to the regulated tank in order to meet the standards for regulated tanks adopted pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25) and 42 U.S.C. s.6991 et seq.
(1) such monies as are appropriated by the Legislature;
(2) sums received as repayment of principal and interest on outstanding loans made from the State Underground Storage Tank Improvement Fund established pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.);
(3) such monies as are appropriated pursuant to section 21 of P.L.1997, c.235 (C.58:10A-37.21);
(4) all non-refundable application fees collected pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6);
(5) sums received as repayment of principal and interest on outstanding loans made from the fund;
(6) any monies recovered by the authority pursuant to sections 14 and 15 of P.L.1997, c.235 (C.58:10A-37.14 and C.58:10A-37.15);
(7) any return on investment of monies deposited in the fund;
(8) any monies recovered through liens pursuant to section 10 or 16 of P.L.1997, c.235 (C.58:10A-37.10 or C.58:10A-37.16); and
(9) payments of the annual surcharge imposed pursuant to section 18 of P.L.1997, c.235 (C.58:10A-37.18).
b. Monies in the fund shall be used by the authority solely for providing financial assistance pursuant to section 4 of P.L.1997, c.235 (C.58:10A-37.4) except that the authority may use any return on investment of monies deposited in the fund, application fees collected pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6), monies recovered by the authority pursuant to sections 14 and 15 of P.L.1997, c.235 (C.58:10A-37.14 and C.58:10A-37.15), and payments of the annual surcharge imposed pursuant to section 18 of P.L.1997, c.235 (C.58:10A-37.18) for actual costs incurred in administering the fund, and for costs of any action to recover monies owing to the fund.
b. Upon a determination that an application for financial assistance meets all established criteria for the award of financial assistance from the fund, the authority shall approve the application. Prior to December 22, 1998, the authority may approve only those applications given priority pursuant to paragraphs (1) and (2) of this subsection or pursuant to subsections c. and f. of this section, but the authority may receive, file, and deem complete any application for financial assistance it receives prior to that date.
Upon the authority's approval of an application for financial assistance, the authority shall award financial assistance to an applicant upon the availability of sufficient monies in the fund. When monies in the fund are not sufficient at any point in time to fully fund all applications for financial assistance that have been approved by the authority, the authority shall award financial assistance to approved applicants, notwithstanding the date of approval of the application, in the following order of priority:
(1) Upgrades of regulated tanks required to be upgraded pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given first priority;
(2) Closure of any regulated tank required to be upgraded pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given second priority;
(3) Upgrades of regulated tanks required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), but not pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given third priority;
(4) Any necessary remediations at the sites of petroleum underground storage tanks other than those given priority pursuant to paragraph (1), (2), or (3) of this subsection shall be given fourth priority;
(5) Closure of any regulated tank required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), but not pursuant to 42 U.S.C. s.6991 et seq., shall be given last priority.
c. Notwithstanding the priority for the award of financial assistance set forth in subsection b. of this section, whenever there has been a discharge, and the discharge poses a threat to a drinking water source, to human health, or to a sensitive or significant ecological area, an approved application for the award of financial assistance for the remediation and upgrade or closure, if necessary, shall be given priority over all other applications for financial assistance.
d. The priority ranking of applicants within any priority category enumerated in paragraphs (1), (2), (3), (4), and (5) of subsection b. and in subsection c. of this section shall be based upon the date an application for financial assistance is filed with the authority as determined pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6).
e. Whenever a facility consists of petroleum underground storage tanks from more than one priority category as enumerated in paragraphs (1) through (5) of subsection b. of this section, and subsection c. of this section, all the petroleum underground storage tanks at that facility shall be accorded the priority that would be accorded the highest priority petroleum underground storage tank at that facility.
f. Notwithstanding the priority rankings established in this section, one-tenth of the amount annually appropriated to the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund shall be used to provide financial assistance to owners or operators of petroleum underground storage tanks used to store heating oil for onsite consumption in a residential building, in order to finance the eligible project costs of remediations that are necessary due to the discharge of heating oil from those petroleum underground storage tanks. The authority shall provide financial assistance pursuant to this subsection notwithstanding the owner or operator's ability to obtain commercial loans for all or part of the financing. The priority ranking of applicants for these funds shall be based upon the date an application for financial assistance is filed with the authority as determined pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6). If the authority does not receive qualified applications for financial assistance from owners and operators of petroleum underground storage tanks used to store heating oil for onsite consumption that meet the criteria set forth in this act and in any rules or regulations issued pursuant thereto, sufficient to enable the award of financial assistance an amount equal to one-tenth of the amount annually appropriated to the fund in any one year as required pursuant to this subsection, the authority may award that financial assistance in the order of priority as provided in this section. In addition to the monies dedicated pursuant to this subsection, the authority may award financial assistance to an owner or operator of a petroleum underground storage tank used to store heating oil for onsite consumption when the criteria enumerated in subsection c. of this section are met.
(2) Notwithstanding the provisions of paragraph (1) of this subsection to the contrary, an eligible owner or operator of a facility located within an area designated as a Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), a designated center as designated pursuant to the "State Planning Act," sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.), or the Highlands Region designated pursuant to section 7 of P.L.2004, c.120 (C.13:20-7), may receive a loan in an amount not to exceed $3,000,000 and a grant in an amount not to exceed $1,000,000 for each facility so located.
(3) Notwithstanding the provisions of paragraphs (1) and (2) of this subsection to the contrary, an applicant that is an independent institution of higher education may receive a grant from the fund for the eligible project costs of a remediation of a discharge from a petroleum underground storage tank in an amount not to exceed $1,500,000 for each independent institution of higher education. The maximum total amount in grants that an independent institution of higher education may receive pursuant to this section and subsection i. of section 7 of P.L.1997, c.235 (C.58:10A-37.7) shall not exceed $1,500,000.
b. A public entity applying for financial assistance from the fund may only be awarded financial assistance in the form of an interest free loan.
c. An applicant, other than a public entity, may apply for and receive a conditional hardship grant for the upgrade, closure or remediation as provided in paragraph (1) of this subsection or for a remediation as provided in paragraph (3) of subsection a. of this section, or a loan for an upgrade, closure or remediation as provided in paragraph (2) of this subsection, provided that an applicant for a conditional hardship grant or a loan for an upgrade may be eligible for financial assistance only for any underground storage tank with a capacity of over 2,000 gallons used to store heating oil for onsite consumption in a nonresidential building that has received an extension of the deadline for compliance with the standards pursuant to subsection b. of section 9 of P.L.1986, c.102 (C.58:10A-29). Financial assistance awarded an applicant pursuant to this subsection may consist entirely of a conditional hardship grant, a loan for an upgrade, a loan for a closure, or a loan for a remediation, or any combination thereof, except that the total amount of the award of financial assistance shall be subject to the per facility dollar limitation enumerated in subsection a. of this section. Notwithstanding any other provision of this subsection to the contrary, no tax exempt, nonprofit organization, corporation, or association shall be awarded a conditional hardship grant pursuant to paragraph (1) of this subsection, provided that an independent institution of higher education, a nonprofit organization, corporation, or association with not more than 100 paid individuals that is qualified for exemption from federal taxation pursuant to section 501 (c)(3) of the federal Internal Revenue Code, 26 U.S.C.s.501(c)(3), or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad, may be awarded a conditional hardship grant pursuant to paragraph (1) of this subsection or a grant pursuant to paragraph (3) of subsection a. of this section, as appropriate.
(1) A conditional hardship grant for eligible project costs of an upgrade, closure or remediation shall be awarded by the authority based upon a finding of eligibility and financial hardship and upon a finding that the applicant meets the criteria set forth in this act.
In order to be eligible for a conditional hardship grant for closure or upgrade, in the case of a regulated tank, the applicant shall have owned or operated the subject regulated tank as of December 1, 2002 and continually thereafter or shall have inherited the property from a person who owned the regulated tank as of that date. In order to be eligible for a conditional hardship grant for remediation, in the case of a regulated tank, the applicant shall have owned or operated the subject regulated tank at the time of tank closure. No applicant shall be eligible for a conditional hardship grant if the applicant has a taxable income of more than $250,000 or a net worth, exclusive of the applicant's primary residence and pension, of over $500,000. Any applicant with a taxable income of more than $200,000 who qualifies for a grant shall be required to pay no more than $1,000 of the eligible project costs.
Notwithstanding the eligibility requirements for net worth and income, an independent institution of higher education, a nonprofit organization, corporation, or association with not more than 100 paid individuals that is qualified for exemption from federal taxation pursuant to section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C.s.501(c)(3), or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad shall be eligible for a conditional hardship grant for eligible project costs of a closure or remediation of a petroleum underground storage tank.
A finding of financial hardship by the authority shall be based upon a determination that an applicant cannot reasonably be expected to repay all or a portion of the eligible project costs if the financial assistance were to be awarded as a loan. The amount of an award of a conditional hardship grant shall be the amount of that portion of the eligible project costs the authority determines the applicant cannot reasonably be expected to repay.
In making a finding of financial hardship for an application for the upgrade, closure, or remediation of a petroleum underground storage tank, where the petroleum underground storage tank is a part of the business property of the owner, the authority shall base its finding upon the cash flow of the applicant's business, whether or not any part of the applicant's business is related to the ownership or operation of that petroleum underground storage tank. In making a finding of financial hardship for an application for the upgrade or remediation of a petroleum underground storage tank, where the petroleum underground storage tank is not a part of the business property of the owner, the authority shall base its finding upon the applicant's taxable income in the year prior to the date of the application being submitted.
If the authority awards a conditional hardship grant in combination with a loan pursuant to this subsection, the authority shall release to the applicant the loan monies prior to the release of the conditional hardship grant monies.
Conditional hardship grants awarded to an applicant shall be subject to the lien provisions enumerated in section 16 of P.L.1997, c.235 (C.58:10A-37.16).
(2) A loan to an eligible owner or operator for the eligible project costs of an upgrade, closure, or remediation shall be awarded by the authority only upon a finding that the applicant other than a public entity is able to repay the amount of the loan. In making a finding of an applicant's ability to repay a loan for the upgrade, closure, and remediation of a regulated tank, or for the remediation of a discharge from a petroleum underground storage tank, the authority shall base its finding, as applicable, upon the cash flow of the applicant's business, the applicant's taxable income and the applicant's personal and business assets, except that the authority may not consider the applicant's primary residence as collateral, except that the authority may consider the applicant's primary residence as collateral with the permission of the applicant or where the subject petroleum underground storage tank or regulated tank is located at the primary residence.
d. The authority shall, where applicable, require an applicant applying for financial assistance from the fund to submit to the authority the financial statements of the applicant's business for three years prior to the date of the application, the most recent interim financial statement for the year of the application, the applicant's federal income tax returns, or other relevant documentation.
e. Nothing in this section is intended to alter the priority or criteria for awarding financial assistance established pursuant to section 4 of P.L.1997, c.235 (C.58:10A-37.4).
f. An eligible owner or operator may only be awarded that amount of financial assistance issued as a loan for which the applicant demonstrates he could not qualify for and obtain as a commercial loan. The provisions of this subsection shall not apply to an owner or operator of a petroleum underground storage tank used to store heating oil for onsite consumption in a residential building, to an independent institution of higher education, or to a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad.
g. An eligible owner or operator of a regulated tank in this State who has met the upgrade requirements pursuant to 42 U.S.C. s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.) may be awarded a loan in order to finance an improvement or replacement of a regulated tank to meet State and federal standards.
h. (1) In the case of a closure of a petroleum underground storage tank used to store heating oil for onsite consumption in a residential building in this State where no remediation is required, an eligible owner or operator may receive a grant for the eligible project costs in an amount consistent with the cost guidelines established by the department pursuant to section 4 of P.L.2009, c.134 (C.58:10A-37.5b) and in effect at the time the closure is performed.
(2) In the case of a replacement and closure of a petroleum underground storage tank used to store heating oil for onsite consumption in a residential building in this State where no remediation is required, an eligible owner or operator may receive a grant for the eligible project costs in an amount consistent with the cost guidelines established by the department pursuant to section 4 of P.L.2009, c.134 (C.58:10A-37.5b) and in effect at the time the replacement and closure is performed.
(3) If an eligible owner or operator applies for a grant pursuant to this subsection prior to the completion of the project and the authority determines that the eligible owner or operator qualifies for the grant, the authority shall issue written confirmation that the eligible owner or operator will receive the grant upon completion of the project. The written confirmation shall be valid for 45 days from the date of issuance. Any eligible owner or operator who has received written confirmation pursuant to this subsection and fails to submit the relevant documentation, certification or other information required by the rules and regulations adopted by the authority pursuant to section 8 of P.L.1997, c.235 (C.58:10A-37.8) before the expiration of the confirmation shall submit a new application for review.
(4) No person shall be eligible for grant monies from the fund to replace a petroleum underground storage tank that stores heating oil for onsite consumption in a residential building if the tank that stores heating oil for that residential building was previously replaced using a grant from the fund.
i. In the case of a closure and replacement of a petroleum underground storage tank used to store heating oil for onsite consumption in a residential building in this State, to the maximum extent feasible, the owner or operator shall replace the petroleum underground storage tank with an aboveground tank.
j. In the case of a closure or replacement of a petroleum underground storage tank with a capacity of 2,000 gallons or less, used to store heating oil for onsite consumption in a nonresidential building that is owned or operated by a nonprofit organization, corporation, or association with not more than 100 paid individuals that is qualified for exemption from federal taxation pursuant to section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C.s.501(c)(3), or by a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad, where no remediation is required, the eligible owner or operator may receive a grant for the eligible project costs of the closure or replacement in an amount consistent with the cost guidelines developed by the department pursuant to section 4 of P.L.2009, c.134 (C.58:10A-37.5b) and in effect at the time the closure or replacement is performed.
No person shall be eligible for grant monies from the fund pursuant to this subsection if the underground storage tank was previously replaced using a grant from the fund.
k. In the case of an emergency remediation of a discharge from a petroleum underground storage tank used to store heating oil for onsite consumption in a residential building in this State, an eligible owner or operator may receive a grant in an amount equal to the actual costs incurred by the department or an authorized agent thereof, and borne by the eligible owner or operator, except that no award of financial assistance shall be made from the fund for administrative costs incurred by the department.
The authority shall adopt rules and regulations listing the filing requirements for a complete application for financial assistance. If a financial assistance application is determined to be incomplete by the authority, an applicant shall have 30 days from the date of receipt of written notification of incompleteness to file such additional information as may be required by the authority for a completed application. If an applicant fails to file the additional information within the 30 days, the filing date for that application shall be the date that such additional information is received by the authority. If the additional information is filed within the 30 days and is satisfactory to the authority, the filing date for that application shall be the initial date of application with the authority. Notwithstanding the above, if a completed application has been submitted and the applicant fails to submit the filing fee, then the filing date for the application shall not be established until the date on which the authority receives the application fee. A change in the filing date resulting from failure to submit a completed application or from failure to submit the application fee in a timely fashion for applications filed for financial assistance for a regulated tank to meet the upgrade or closure requirements pursuant to 42 U.S.C. s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.) or for the remediation of a discharge from any such regulated tank shall not render the application ineligible for financial assistance as long as the initial date of application is prior to June 30, 2010, or for a regulated tank that is not operational, 18 months from the date of discovery of the tank or June 30, 2010, whichever is later.
An applicant shall have 120 days from receipt of notice of approval of a financial assistance award to submit to the authority an executed contract for the upgrade, closure, or remediation, or all three, as the case may be, that is consistent with the terms and conditions of the financial assistance approval. Failure to submit an executed contract within the allotted time, without good cause, may result in an alteration of an applicant's priority ranking.
b. The authority may deny an application for financial assistance, and any award of financial assistance may be recoverable by the authority, upon a finding that:
(1) in the case of financial assistance awarded for a remediation, the discharge was proximately caused by the applicant's knowing conduct;
(2) in the case of financial assistance awarded for a remediation, the discharge was proximately caused or exacerbated by knowing conduct by the applicant with regard to any lawful requirement applicable to petroleum underground storage tanks intended to prevent, or to facilitate the early detection of, the discharge;
(3) the applicant failed to commence or complete a remediation, closure, or an upgrade for which an award of financial assistance was made within the time required by the department in accordance with the applicable rules and regulations, within the time prescribed in an administrative order, an administrative consent agreement, a memorandum of agreement, or a court order; or
(4) the applicant provided false information or withheld information on a loan or grant application, or other relevant information required to be submitted to the authority, on any matter that would otherwise render the applicant ineligible for financial assistance from the fund, that would alter the priority of the applicant to receive financial assistance from the fund, that resulted in the applicant receiving a larger grant or loan award than the applicant would otherwise be eligible, or that resulted in payments from the fund in excess of the actual eligible project costs incurred by the applicant or the amount to which the applicant is legally eligible.
Nothing in this subsection shall be construed to require the authority to undertake an investigation or make any findings concerning the conduct described in this subsection.
c. An application for financial assistance from the fund for an upgrade or closure of a regulated tank shall include all regulated tanks at the facility for which the applicant is seeking financial assistance. Except as provided in subsection g. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), once financial assistance for an upgrade or closure is awarded for a facility, no additional award of financial assistance for upgrade or closure costs may be made for that facility. However, if an applicant discovers while performing upgrade or closure activities that a remediation is necessary at the site of a facility, and if financial assistance was previously awarded for that site only for an upgrade or closure of a regulated tank, the applicant may amend his application and apply for financial assistance for the required remediation subject to the limitations enumerated in section 5 of P.L.1997, c.235 (C.58:10A-37.5). An application for financial assistance for an upgrade or closure of a regulated tank shall be conditioned upon the applicant agreeing to perform, at the time of the upgrade or closure, any remediation necessary as a result of a discharge from the regulated tank and commencement of the remediation within the time prescribed and in accordance with the rules and regulations of the department.
d. Except as provided in this subsection, and in subsection g. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), no financial assistance for upgrade shall be awarded for any regulated tank required to meet the upgrade or closure requirements pursuant to 42 U.S.C.s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.), unless the application is filed with the authority prior to January 1, 1999 and the application is complete and the application fee is received by August 1, 1999. Except as provided in subsection g. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), no financial assistance for upgrade shall be awarded for any underground storage tank with a capacity of over 2,000 gallons used to store heating oil for onsite consumption in a nonresidential building required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.) but not pursuant to 42 U.S.C.s.6991 et seq., unless the applicant has received an extension of the deadline for compliance with the standards pursuant to subsection b. of section 9 of P.L.1986, c.102 (C.58:10A-29), the application is filed with the authority prior to June 30, 2005 and the application is complete and the application fee is received by December 31, 2005.
No financial assistance for closure shall be awarded for any regulated tank required to meet the upgrade or closure requirements pursuant to 42 U.S.C.s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.), or for the remediation of a discharge from any such regulated tank except as provided in subsection c. of this section, unless the application is filed with the authority prior to June 30, 2010 and the application is complete and the application fee is received by December 31, 2010.
In the case of a regulated tank that is not operational, financial assistance for the closure or the remediation of any discharge therefrom may be awarded if the application is filed with the authority no more than 18 months after the date of discovery of the existence of the regulated tank, or no later than June 30, 2010, whichever is later.
e. The date of occurrence of a discharge shall not affect eligibility for financial assistance from the fund. Except for a preliminary assessment or a site investigation performed after the effective date of P.L.1997, c.235 (C.58:10A-37.1 et seq.), and except as provided in subsections g. through j. of this section, no award of financial assistance shall be made from the fund for the otherwise eligible project costs of a remediation, closure, or an upgrade, or parts thereof, completed prior to an award of financial assistance from the fund.
f. No financial assistance may be awarded from the fund for the remediation of a discharge from a petroleum underground storage tank if financial assistance from the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4) has previously been made for a remediation at that site as a result of a discharge from that petroleum underground storage tank. No financial assistance may be awarded from the fund for the remediation of a discharge from a petroleum underground storage tank if the discharge began subsequent to the completion of an upgrade of that petroleum underground storage tank, which upgrade was intended to meet all applicable upgrade regulations of the department, no matter when the upgrade was performed.
g. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.), where an eligible owner or operator has filed an application for financial assistance from the fund, and there are either insufficient monies in the fund or the authority has not yet acted upon the application or awarded the financial assistance, the eligible owner or operator may expend its own funds for the upgrade, closure, or remediation, and upon approval of the application, the authority shall award the financial assistance as a reimbursement of the monies expended for eligible project costs.
h. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.) to the contrary, if an applicant has expended the applicant's own funds on a remediation after filing an application for financial assistance from the fund for the eligible project costs of the remediation, the authority, upon approval of the application, may make a grant from the fund pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5) to reimburse the eligible owner or operator for the eligible project costs of the remediation.
i. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.) to the contrary, if an applicant that is an independent institution of higher education has expended the applicant's own funds on a remediation prior to filing an application for financial assistance from the fund for the eligible project costs of the remediation, the authority, upon approval of the application, may make a grant from the fund pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5) to reimburse the applicant for expenditures for the eligible project costs of the remediation made on or after December 1, 1996 in an amount not to exceed $500,000 for each independent institution of higher education.
j. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.) to the contrary, if an applicant has expended the applicant's own funds for a remediation of a petroleum underground storage tank used to store heating oil at the applicant's primary residence prior to filing an application for financial assistance from the fund for the eligible project costs of the remediation, the authority, upon approval of the application, may make a grant from the fund pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5) to reimburse the applicant for the eligible project costs of the remediation.
k. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.) to the contrary, if an applicant that is a nonprofit organization, corporation, or association with not more than 100 paid individuals that is qualified for exemption from federal taxation pursuant to section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C.s.501(c)(3), or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad, has expended the applicant's own funds on a remediation of a discharge from a petroleum underground storage tank with a capacity of 2,000 gallons or less, used to store heating oil for onsite consumption in a nonresidential building on or after the effective date of P.L.2009, c.134 (C.58:10A-37.5b et al.) prior to filing an application for financial assistance from the fund for the eligible project costs of the remediation, the authority, upon approval of the application, may make a grant from the fund pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5) to reimburse the applicant for expenditures for the eligible project costs of the remediation.
(1) require an applicant:
(a) to submit documentation or other information on the nature and scope of the work to be performed, cost estimates thereon, and, as available, proofs of the actual costs of all work performed;
(b) to demonstrate, where applicable, an ability to repay the amount of any loan and to provide adequate collateral to secure the amount of a loan;
(c) to submit a certification that the applicant has not engaged in any of the conduct described in subsection b. of section 7 of P.L.1997, c.235 (C.58:10A-37.7);
(d) to submit a certification that any upgrade, closure, and remediation being undertaken will be or was completed or was in conformance with rules and regulations of the department;
(e) require the loan or grant recipient to provide access at reasonable times to the subject property to determine compliance with the terms and conditions of the loan or grant; and
(f) to submit documentation and a certification, as applicable, that the applicant was unable to qualify for and obtain a commercial loan for all or part of the eligible project costs;
(2) require any financial assistance awarded to be used only for the purposes for which the award is made and that the applicant is adhering to all of the terms and conditions of the loan agreement; and
(3) adopt such other requirements as may be deemed necessary to carry out its responsibilities pursuant to this act.
b. Information submitted as part of an application that results in the award of a grant from the fund shall be a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.). Information submitted as part of an application that results solely in the award of a loan from the fund shall not be a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).
c. The authority may file a lien on real property owned by the applicant in addition to the property at which the subject facility is located to secure a loan, except that such a filing shall be subject to the restrictions on the use of the applicant's primary residence as collateral, as provided in section 5 of P.L.1997, c.235 (C.58:10A-37.5) and paragraph (3) of subsection d. of this section. Liens filed pursuant to this subsection shall not affect any valid lien, right or interest in the real property filed in accordance with established procedure prior to the filing of this notice of lien.
d. In establishing requirements for applications for financial assistance, the authority:
(1) may not impose conditions that interfere with the everyday normal operations of a financial assistance recipient's business activities, except to the extent necessary to ensure the recipient's ability to repay the loan and to preserve the value of any loan collateral;
(2) shall strive to minimize the complexity and costs to applicants or recipients of compliance with such requirements;
(3) may not require as collateral for any loan, except with the applicant's consent, the primary residence of the applicant, except that this paragraph shall not apply to a loan issued from the fund for the eligible project costs for a petroleum underground storage tank at the site of the primary residence; and
(4) shall expeditiously process all applications in accordance with a schedule established by the authority for the review thereof and the taking of final action, which schedule shall reflect the complexity of an application.
b. The provisions of subsection a. of this section shall not apply upon the denial of an application for financial assistance or in the case of a knowing discharge that may result in a serious threat to the public health or the environment. The department shall make an annual report to the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee or their successors listing any enforcement actions taken against an owner or operator of a regulated tank who meets the requirements of subsection a. of this section. The report shall list the name of the violator, the specific statute or regulation alleged to have been violated, the status of the case at the time of the report, and the penalty imposed.
b. Upon the sale of the facility for which the loan was made, the unpaid balance of the loan shall become immediately payable in full. Upon the sale of a facility for which a conditional hardship grant was made pursuant to section 5 of P.L.1997, c.235 (C.58:10A-37.5), that amount of the conditional hardship grant that must be repaid, as calculated pursuant to section 16 of P.L.1997, c.235 (C.58:10A-37.16), shall become immediately payable in full except as provided below. No repayment of a conditional hardship grant shall be required upon transfer of ownership of the property for which the grant was made, pursuant to a condemnation proceeding or by the exercise of the power of eminent domain. No repayment of a conditional hardship grant awarded pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5) for a remediation necessitated by a discharge from a petroleum underground storage tank used to store heating oil at the applicant's primary residence shall be required.
b. The authority may seek to recover any financial assistance or that part of an award of financial assistance that exceeds the eligible project costs or that was obtained as a result of conduct described in paragraph (4) of subsection b. of section 7 of P.L.1997, c.235 (C.58:10A-37.7). If the authority is the prevailing party in an action to recover financial assistance payments made from the fund, the authority shall be entitled to all investigative and legal costs incurred by the authority in bringing and prosecuting the action, as well as interest charges which shall accrue as of the date such payments were made from the fund, unless the court makes a finding of a lack of intent to defraud the fund. The rate of interest shall be the interest rate for judgments established pursuant to the Rules Governing the Courts of the State of New Jersey.
b. (1) The authority may commence a civil action in Superior Court to recover any financial assistance awarded to an applicant from the fund if financial assistance was obtained, in whole or in part, as the result of providing false documents or false information to the authority or to the department or by withholding documents or information from the authority or the department. The action to recover money awarded by the authority may be combined with any action to impose penalties provided for in subsection a. of this section.
(2) The authority may commence a civil action in Superior Court to recover any financial assistance awarded as a loan where the recipient of the loan has not made loan repayments in accordance with the loan agreement, where any condition or provision of the loan agreement has been violated by the loan recipient, or to enforce any lien filed pursuant to the issuance of financial assistance.
c. (1) A person who purposely or knowingly provides false documents or false information to the authority or to the department, or withholds documents or information, in relation to an application for financial assistance from the fund or in relation to documents or information that may be required as a condition of receiving an award of financial assistance from the fund, with the intent to alter the applicant's eligibility for financial assistance from the fund, alter the priority of the applicant's application to receive financial assistance from the fund, cause the applicant to receive a larger grant award than the applicant would otherwise be eligible for, or obtain financial assistance from the fund in excess of the eligible project costs, shall be guilty of a crime of the third degree.
(2) A person who recklessly provides false documents or false information to the authority or to the department, or withholds documents or information, in relation to an application for financial assistance from the fund or in relation to documents or information that may be required as a condition of receiving an award of financial assistance from the fund, which results in the alteration of the applicant's eligibility for financial assistance from the fund, the alteration of the priority of the applicant's application to receive financial assistance from the fund, which causes the applicant to receive a larger grant award than the applicant would otherwise be eligible for, or obtain financial assistance from the fund in excess of the eligible project costs, shall be guilty of a crime of the fourth degree.
Where financial assistance from the fund is awarded as a combination of a loan and a grant, separate liens for the loan and the grant shall be filed. No lien shall be placed on any real property of an applicant based on a conditional hardship grant awarded pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), for a replacement or closure of a petroleum underground storage tank used to store heating oil at the applicant's residence or for a remediation necessitated by a discharge from a petroleum underground storage tank used to store heating oil at the applicant's residence.
b. A lien that is filed on real property pursuant to a loan shall be removed upon repayment of the loan.
c. Except as provided below, the lien that is filed on real property pursuant to a conditional hardship grant shall be removed upon repayment of the amount of the grant that is unsatisfied or upon the end of a five-year period in which the site for which the financial assistance was awarded continued to be operated in substantially the same manner as it was operated at the time of the award of financial assistance. The period of operation need not run consecutively. Beginning with the second year of operating in substantially the same manner, 25% of the conditional hardship grant shall be deemed satisfied with an additional 25% to be satisfied each year until the entire amount of the conditional hardship grant is satisfied at the end of the five-year period. The owner or operator of the facility claiming to have satisfied a conditional hardship grant due to the five-year period of operation, shall submit a certification of this fact to the authority. Upon repayment of the unsatisfied grant award or upon submittal of this certification, unless the authority has made a finding that the certification is not correct, the authority shall remove the lien from the property.
Where real property for which a conditional hardship grant was awarded is not being operated in substantially the same manner, the five-year period to satisfy the lien shall be tolled. If at any time prior to the satisfaction of the lien the property is developed or operated for a purpose that is not substantially the same as its operation at the time of the award of the conditional hardship grant, the grant recipient shall so certify to the authority upon the change in operation. Upon receipt of this certification, the authority shall determine, based upon the new operation of the property if the financial assistance shall continue as a conditional hardship grant or if it shall be converted into a loan. In making this determination, the authority shall base its decision on the financial hardship factors used in determining the original eligibility for the conditional hardship grant.
A lien that is filed on real property pursuant to a grant shall be removed by the authority upon condemnation of the property or upon the exercise of the power of eminent domain, and the conditional hardship grant shall be deemed satisfied.
The authority may take whatever enforcement actions it deems necessary to verify the operation of any property for which a conditional hardship grant was made. The terms and conditions of any loan converted from a grant pursuant to this subsection shall be the same as those authorized pursuant to this act.
d. The provisions of this section do not apply to any real property of an applicant who is a public entity.
b. Within 180 days of the effective date of this act, the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations for the administration of the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund and the issuance of financial assistance therefrom as necessary to implement this act.
c. Prior to the adoption of rules and regulations pursuant to this section, the authority and the department may, notwithstanding the provisions of the "Administrative Procedure Act," adopt procedures for the acceptance and review of financial assistance applications from the fund. No financial assistance may be awarded however, until the rules and regulations are adopted pursuant to this section.
Nothing in this section shall be construed to negate the requirement of an owner or operator of a facility to maintain evidence of financial responsibility as may be required pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25) or pursuant to 42 U.S.C. s.6991 et seq.
The New Jersey Economic Development Authority, in consultation with the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations imposing the surcharge.
(1) impose any liability on the State or the authority for any claims made to, or approved from, the Petroleum Underground Storage Tank Remediation, and Closure Upgrade Fund, and the extent of the State's or authority's responsibility for the payment or reimbursement of an approved application shall be limited to the amount of otherwise unobligated monies available in the fund;
(2) impose any liability on the State or the authority for the quality of any work performed pursuant to a remediation, closure or an upgrade for which financial assistance is made; or
(3) alter any obligation of an owner or operator of a facility, who is eligible for financial assistance from the fund, to comply in a timely manner with all lawful requirements relating to the facility.
The Legislature finds that contaminated sludges are often ocean dumped; that land-based disposal methods for sludge are environmentally preferable to the current practice of ocean dumping; that land-based disposal of sludge requires the removal of contaminants from the waste stream; that by requiring land-based sludge management criteria for sludges which are currently ocean dumped, the sewage treatment plants will have the option to cease ocean dumping in favor of a land-based disposal method; and that even if ocean dumping of sludge continues, it is prudent to minimize the presence of contaminants in the sludge.
The Legislature further finds that the State should work toward developing alternatives to ocean disposal of sludge in the event that the practice is prohibited, and that the land-based sludge management criteria already established for sludge should be used to develop the standards for limiting the levels of contaminants discharged by industrial establishments into the sewerage systems, which limits should be incorporated in the discharge permits issued to facilities.
The Legislature therefore determines that all sludge generated in the State from the operation of municipal treatment works should meet the quality standards established by the Department of Environmental Protection for the land-based sludge management of sludge and that the attainment of these standards should be reflected in the permits issued for pretreatment discharges.
As used in this act:
"Land-based sludge management criteria" means those standards established by the department in the Statewide Sludge Management Plan adopted pursuant to the "Solid Waste Management Act," P.L. 1970, c. 39 (C. 13:1E-1 et seq.), or established pursuant to the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. s.1251 et seq.), or any regulations adopted pursuant thereto.
"Pretreatment permit" means a permit issued by either the department or by a municipal treatment works or by both for the discharge of industrial wastewater into a sewerage system;
"Sludge" means the solid residue and associated liquid resulting from physical, chemical, or biological treatment of domestic or industrial wastewaters;
"Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewage, stormwater runoff, or any combination thereof, or other residue discharged to or collected by a sewerage system.
All pretreatment permits shall include limits on the discharge of pollutants, which limits shall be based on the attainment of land-based sludge management criteria for sludge from the municipal treatment works. Sludge that meets the land-based sludge management criteria shall be of sufficient quality to be disposed of in a land-based manner without degrading the environment or posing a threat to human health.
On or after March 17, 1991, all sludge generated in this State by municipal treatment works shall conform to the land-based sludge management criteria.
Each municipal treatment works shall prepare a plan for the land-based management of sludges currently disposed of in the ocean. The plan shall provide for the termination of ocean disposal by March 17, 1991 and shall include, but need not be limited to, an analysis of the pretreatment, air pollution control, residuals management, funding requirements and potential sources thereof necessary for the implementation of the land-based management methods chosen by the municipal treatment works. Not later than April 30, 1989, each municipal treatment works shall develop a plan to implement land-based sludge management methods and shall so certify to the Department of Environmental Protection. Not later than June 30, 1989, the department shall submit the several plans to the Governor and the Legislature, together with its comments thereon and any recommendations for legislative or administrative action deemed appropriate.
The Department of Environmental Protection shall establish compliance schedules for municipal treatment works. The compliance schedules shall include deadlines for submittal of the permit application or applications for the chosen land-based sludge management method or methods, awarding of the construction contract, commencement of construction, and completion of construction. The department shall act either to approve, conditionally approve or deny permit applications within six months of their submittal.
This act shall be known and may be cited as the "Ocean Sludge Dumping Elimination Act."
The Legislature finds that 2.8 million wet tons (1 million dry pounds) of sewage sludge generated by six New Jersey municipal treatment works each day are ocean disposed at the federally designated 106-mile dump site; that these sludges are ocean rather than land disposed in recognition of the threat posed by the presence of contaminants; that the United States Environmental Protection Agency has officially affirmed a termination of ocean dumping as its adopted policy, a goal undermined by continuing at-sea disposal of sewage sludge; and that experts in deepwater ocean ecosystems have attested to the deleterious effects of waste disposal on the ocean environment.
The provisions of any other law, rule or regulation to the contrary notwithstanding, municipal treatment works are prohibited from disposing of sludge in ocean waters by March 17, 1991.
This act shall be known and may be cited as the "Ocean Dumping Enforcement Act."
As used in this act:
"Dump" or "dumping" means the disposition of material. Dumping does not mean: (1) the disposition of any effluent from any outfall structure to the extent that the disposition is regulated under the provisions of the State "Water Pollution Control Act," P.L. 1977, c. 74 (C. 58:10A-1 et seq.); (2) a routine discharge of effluent incidental to the propulsion of, or operation of motor-driven equipment on, vessels; (3) the construction of any fixed structure or artificial island nor the intentional placement of any device in ocean waters, or on or in the submerged land beneath those waters, for a purpose other than disposal, when the construction or placement is otherwise regulated by federal or State law or occurs pursuant to an authorized federal or State program; (4) the deposit of fish, shellfish, and other animals and plants, or their body parts, for the purpose of developing, maintaining, or harvesting fishery, plant, or shellfish resources and is otherwise regulated by federal or State law or occurs pursuant to an authorized federal or State program; (5) the discharge of sewage as defined pursuant to 33 U.S.C. s.1322; or (6) any dumping activity permitted and not violative of the provisions of the federal "Marine Protection, Research, and Sanctuaries Act of 1972," 33 U.S.C. s.1401 et seq. or other State or federal law;
"Material" means matter of any kind or description, including, but not limited to, dredged material, solid waste, incinerator residue, garbage, sewage, sewage sludge, munitions, radiological, chemical, and biological warfare agents, radioactive materials, chemicals, biological and laboratory waste, wrecked or discarded equipment, rock, sand, excavation debris, and industrial, municipal, agricultural, and other waste;
"Ocean waters" means those waters of the open seas lying seaward of the base line from which the territorial sea is measured, as provided for in the Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 U.S.T. 1606, T.I.A.S. No. 5639.
(2) If the violation involves the willful illegal or improper disposal of regulated medical waste, as defined pursuant to section 3 of P.L.1989, c.34 (C.13:1E-48.3), and the person found guilty or liable for the violation is a health care professional, facility, generator, or transporter, as also defined under P.L.1989, c.34, the violator shall also be subject to any applicable penalties under P.L.1977, c.74 (C.58:10A-1 et seq.) and P.L.1989, c.34 (C.13:1E-48.1 et al.), including but not limited to the suspension and revocation provisions of section 23 of P.L.1989, c.34 (C.13:1E-48.23) and sections 4 and 5 of P.L.2012, c.65 (C.13:1E-48.23a and C.13:1E-48.23b).
b. Of the monetary penalty imposed pursuant to this section, 10% shall be paid to the Department of Environmental Protection from the General Fund if the Attorney General determines that a person or persons are entitled to a reward pursuant to subsection c. of this section.
c. Any person who provides information to an enforcing authority concerning a violation of this act that proximately results in the imposition and collection of a criminal penalty as the result of a criminal action brought pursuant to this act shall be entitled to a reward of 10% of the penalty collected. The reward shall be paid by the department from moneys received pursuant to subsection b. of this section. If more than one person is entitled to a reward, the Attorney General shall determine the percentage of the reward that each person shall receive. The Attorney General shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to implement this section, including procedures to assure the anonymity of the person or persons providing the information to the enforcing authority when appropriate.
(1) bring a civil action in accordance with subsection b. of this section;
(2) levy a civil administrative penalty in accordance with subsection c. of this section;
(3) bring an action for a civil penalty in accordance with subsection d. of this section; or
(4) petition the Attorney General to bring a criminal action in accordance with section 3 of P.L.1988, c.61 (C.58:10A-49).
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
b. The commissioner may institute an action or proceeding in the Superior Court for injunctive and other relief, including the appointment of a receiver for any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.
Such relief may include, singly or in combination:
(1) a temporary or permanent injunction;
(2) assessment of the violator for the costs of any investigation, inspection, or monitoring survey that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) assessment of the violator for any cost incurred by the State in removing, correcting, or terminating the adverse effects upon environmental quality or public health resulting from any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought;
(4) assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought; and
(5) assessment against the violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
Assessments under this subsection shall be paid to the State Treasurer, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.
c. The commissioner may assess a civil administrative penalty of not more than $100,000 for each violation. Each day that a violation continues shall constitute an additional, separate, and distinct offense. No assessment may be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, or order violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties to be imposed, and a statement of the party's right to a hearing. The ordered party shall have 20 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 20-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L.1988, c.61 (C.58:10A-47 et seq.), and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied.
d. A person who violates P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $100,000 per day for each violation, to be collected in a civil action commenced by the Commissioner of Environmental Protection.
A person who violates a court order issued pursuant to subsection b. of this section or who fails to pay an administrative assessment in full pursuant to subsection c. of this section is subject upon order of a court to a civil penalty not to exceed $100,000 per day for each violation.
Any penalty imposed pursuant to this subsection may be collected, with costs, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with P.L.1988, c.61 (C.58:10A-47 et seq.).
The provisions of this act do not apply when the dumping of any material is necessary to secure the safety of human life or of vessels, aircraft, platforms, or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case that constitutes a danger to human life or a real threat to vessels, aircraft, platforms, or other man-made structures at sea, if dumping appears to be the only way of averting the threat and if there is every probability that the damage consequent upon the dumping will be less than would otherwise occur. In such instances dumping pursuant to this section shall be so conducted as to minimize the likelihood of damage to human or marine life.
The Attorney General shall submit to the Administrator of the federal Environmental Protection Agency whatever proposals may be necessary pursuant to 33 U.S.C. s.1416 in order to allow enforcement of the provisions of this act.
This act shall be known, and may be cited, as the "Clean Ocean Education Act."
The Legislature finds and declares that the presence of plastic and other non-biodegradable materials in coastal waters has an adverse effect on the quality of ocean waters, on sea mammals and other marine life, and potentially on human health; that behavior which results in ocean and beach discharges of such materials is the product, at least in part, of a lack of information and awareness on the part of the general public of the consequences of their acts; and that a public education program can play a key role in supplementing State, federal, and international efforts to reduce ocean pollution and promote a healthy marine environment.
The Department of Environmental Protection, in consultation with the Department of Education and citizen, educational and environmental groups, shall prepare educational materials concerning the deleterious effects of plastics and other forms of pollution on the marine environment. The materials shall promote the values of litter control, oil recycling, street cleaning, and "pooper scooper" activities; encourage the use of biodegradable or recyclable alternatives to plastics where adequate alternatives exist; and inform citizens of the need to develop and participate in community programs for recycling, litter control, and other similar public benefit programs. The Department of Environmental Protection shall distribute these educational materials to civic, community, and other public interest organizations.
The Department of Education shall distribute the educational materials prepared by the Department of Environmental Protection pursuant to section 3 of this act to each school district in the State. Local school boards are encouraged to integrate these educational materials into the curricula where possible, and to otherwise make them available to elementary and secondary school children for extracurricular activities and to their parents.
No person may discharge sewage from a watercraft into any coastal water area designated as a "no discharge" area by the Administrator of the federal Environmental Protection Agency pursuant to an application filed by the Department of Environmental Protection in accordance with 33 U.S.C. s.1322.
a. Within 90 days of the effective date of this act, the Department of Environmental Protection shall conduct a study of the availability and location of, and demand or need for, sewage pumpout devices for Type III marine sanitation devices, and portable toilet emptying receptacles at public or private marinas and boatyards, or at other locations in coastal estuaries and their tributaries within the State's jurisdiction. This study shall include an identification of the wastewater treatment facilities at which waste from Type III marine sanitation devices and portable toilet emptying receptacles shall be disposed of and treated.
b. Within nine months of the completion of the study conducted pursuant to subsection a. of this section, the Department shall adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.) rules and regulations identifying the public or private marinas at which sewage pumpout devices for Type III marine sanitation devices and portable toilet emptying receptacles shall be located, and requiring the owners or operators of those public or private marinas to install or provide the required sewage pumpout devices or portable emptying receptacles, as the case may be.
Not later than May 1, 1989, the department shall submit to the Assembly Environmental Quality Committee and the Senate Energy and Environment Committee the assessment study required pursuant to section 2 of this act, along with its recommendations for any legislative and administrative action that may be necessary to assure watercraft, using the coastal and intracoastal waters of the State, reasonable access to sewage pumpout facilities and portable toilet emptying receptacles. The recommendations shall include proposals for an information program to acquaint boaters with proper sewage disposal and the location of marine sewage disposal facilities.
A person who violates the provisions of section 1 of this act, or who violates the provisions of any rule and regulation adopted by the department pursuant to section 2 of this act, shall be subject to the penalty provisions of section 10 of P.L. 1977, c. 74 (C. 58:10A-10).
The department shall apply, within six months of the effective date of this act, to the United States Environmental Protection Agency for such approval as is necessary to implement the provisions of section 1 of this act.
"Commercial farm" means the same as that term is defined pursuant to section 3 of P.L.1983, c.31 (C.4:1C-3).
"Department" means the Department of Environmental Protection.
"Fertilizer" means a fertilizer material, mixed fertilizer or any other substance containing one or more recognized plant nutrients, which is used for its plant nutrient content, designed for use or claimed to have value in promoting plant growth, and sold, offered for sale, or intended for sale; except that it shall not include unmanipulated animal or vegetable manures, agricultural liming materials, wood ashes, or processed sewage wastewater solids.
"Impervious surface" means any structure, surface, or improvement that reduces or prevents absorption of stormwater into land, and includes porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements.
"Local health agency" means the same as that term is defined pursuant to section 3 of P.L.1975, c.329 (C.26:3A2-3).
"Manipulated animal or vegetable manure" means manure that is ground, pelletized, mechanically dried, or otherwise treated to assist with the use of manure as a fertilizer.
"Person" means any individual, corporation, company, partnership, firm, association, political subdivision, or government entity.
"Professional fertilizer applicator" means any individual who applies fertilizer for hire, including any employee of a government entity who applies fertilizer within the scope of employment.
"Slow release nitrogen" means nitrogen in a form that is released over time that is not water soluble.
"Soil test" means a technical analysis of soil conducted by a laboratory authorized by the New Jersey Agricultural Experiment Station at Rutgers, the State University, pursuant to section 6 of this act.
"Turf" means land, including residential property and publicly owned land, that is planted in closely mowed, managed grass, except golf courses or land used in the operation of a commercial farm.
"Waterbody" means a surface water feature, such as a lake, river, stream, creek, pond, lagoon, bay or estuary.
"Water-soluble nitrogen" means nitrogen in a water-soluble form that does not have slow or controlled release properties.
(1) apply fertilizer to turf when a heavy rainfall, as shall be defined by the Office of the New Jersey State Climatologist at Rutgers, the State University, is occurring or predicted or when soils are saturated and a potential for fertilizer movement off-site exists;
(2) apply any fertilizer intended for use on turf to an impervious surface, and any fertilizer inadvertently applied to an impervious surface shall be swept or blown back onto the target surface or returned to either its original or another appropriate container for reuse; or
(3) apply fertilizer containing phosphorus or nitrogen to turf before March 1st or after November 15th in any calendar year, or at any time when the ground is frozen, except as provided otherwise in subsection b. of this section.
b. No professional fertilizer applicator shall apply fertilizer containing phosphorus or nitrogen to turf before March 1st or after December 1st in any calendar year, or at any time when the ground is frozen.
(1) apply fertilizer to turf in an amount that is more than an annual total of 3.2 pounds of total nitrogen per 1,000 square feet, except as provided otherwise in subsection b. of this section; or
(2) apply fertilizer containing: (a) nitrogen that is less than 20 percent slow release; (b) nitrogen to turf at a rate of more than 0.7 pounds of water-soluble nitrogen per 1,000 square feet per application; or (c) nitrogen to turf at a rate of more than 0.9 pounds of total nitrogen per 1,000 square feet per application, except as provided otherwise in subsection b. of this section.
b. No professional fertilizer applicator shall:
(1) apply fertilizer containing nitrogen to turf at a rate of (a) more than 0.7 pounds of water-soluble nitrogen per 1,000 square feet per application, and (b) more than one pound of total nitrogen per 1,000 square feet per application; or
(2) apply fertilizer to turf in an amount that is more than an annual total of 4.25 pounds of total nitrogen per 1,000 square feet.
c. (1) No professional fertilizer applicator may apply fertilizer to turf without first obtaining a fertilizer application certification, or training if applying fertilizer under the direct supervision of a certified professional fertilizer applicator, pursuant to section 4 of this act.
(2) No person, other than a certified professional fertilizer applicator or a person trained and under the direct supervision of a certified professional fertilizer applicator, may apply fertilizer to a golf course.
d. Except as provided otherwise in subsection e. of this section, no person may apply fertilizer containing phosphorus unless the person:
(1) determines that the fertilizer is necessary for the specific soils and target vegetation pursuant to a soil test performed no more than three years before the application, and pursuant to the associated annual fertilizer recommendation issued by the New Jersey Agricultural Experiment Station at Rutgers, the State University;
(2) is establishing vegetation for the first time, such as after land disturbance, provided the application is in accordance with the standards and requirements established under the "Soil Erosion and Sediment Control Act," P.L.1975, c.251 (C.4:24-39 et seq.), and the rules and regulations adopted pursuant thereto;
(3) is reestablishing or repairing a turf area; or
(4) is delivering liquid or granular fertilizer under the soil surface directly to the feeder roots.
e. A person may apply fertilizer containing phosphorus to turf if the fertilizer consists of manipulated animal or vegetable manure, includes no more than 0.25 pounds of phosphorus per 1,000 square feet when applied pursuant to the instructions on the container, and otherwise complies with the provisions of this act.
f. (1) Except as provided otherwise in paragraph (3) of this subsection, no person shall apply fertilizer containing phosphorus or nitrogen to turf within 25 feet of any waterbody, except that where a drop spreader, rotary spreader with a deflector or targeted spray liquid is used for fertilizer application, the buffer may be reduced to 10 feet.
(2) The establishment of buffers for fertilizer application pursuant to paragraph (1) of this subsection shall not preclude the establishment or applicability of, or compliance with, any other environmental standards established pursuant to any other State or federal law, rule or regulation.
(3) A professional fertilizer applicator may apply a rescue treatment to turf in a buffer area established pursuant to paragraph (1) of this subsection.
As used in this paragraph, "rescue treatment" means a fertilizer application, consistent with the nitrogen content applied by a professional fertilizer applicator pursuant to paragraph (1) of subsection b. of this section, applied no more than once a year to an area between 10 and 25 feet of a waterbody.
g. No person may apply fertilizer to turf exceeding the nitrogen standards set forth in subsections a. and b. of this section, unless the person is establishing vegetation for the first time, such as after land disturbance, provided the fertilizer application is in accordance with the standards and requirements established under the "Soil Erosion and Sediment Control Act," P.L.1975, c.251 (C.4:24-39 et seq.), and the rules and regulations adopted pursuant thereto.
(1) the proper use and calibration of fertilizer application equipment;
(2) the hazards involved in, and the environmental impact of, applying fertilizer, including nutrient pollution to the State's waterbodies;
(3) all applicable State and federal laws, rules and regulations;
(4) the correct interpretation of fertilizer labeling information; and
(5) the best management practices developed by the New Jersey Agricultural Experiment Station for nutrient management in turf.
b. In establishing a fertilizer application certification program, the New Jersey Agricultural Experiment Station may:
(1) charge reasonable fees, including, but not limited to, an annual re-certification fee, to cover costs associated with the certification program;
(2) require continuing education or training for certified professional fertilizer applicators;
(3) designate one or more qualified organizations to train, certify, and recertify professional fertilizer applicators and provide that a designated organization may charge fees to cover reasonable costs associated with the certification training and education; and
(4) recognize the training program of any person employing professional fertilizer applicators if it meets the certification and recertification training and education standards established by the program pursuant to this section.
c. The New Jersey Agricultural Experiment Station shall conduct examinations to certify that an applicant possesses sufficient knowledge of the State and federal laws, rules and regulations, standards and requirements applicable to the use and application of fertilizer. No person may take the certification examination until the New Jersey Agricultural Experiment Station determines that the applicant has obtained the education and training established by the fertilizer application certification program pursuant to this section.
d. An application for certification shall be made in a manner and on such forms as may be prescribed by the New Jersey Agricultural Experiment Station. The filing of an application shall be accompanied by an application fee that shall cover the costs of processing the application and developing and conducting the examination.
e. The New Jersey Agricultural Experiment Station shall, in consultation with the department, establish a training program for those professional fertilizer applicators who will apply fertilizer only under the direct supervision of a certified professional fertilizer applicator. The New Jersey Agricultural Experiment Station shall establish minimum standards and criteria for a training program conducted pursuant to this subsection. In establishing the training program, the New Jersey Agricultural Experiment Station may:
(1) charge reasonable fees to cover costs associated with the training program;
(2) require continuing education or training for professional fertilizer applicators who apply fertilizer only under the direct supervision of a certified professional fertilizer applicator;
(3) designate one or more qualified organizations to train professional fertilizer applicators who will apply fertilizer only under the direct supervision of a professional fertilizer applicator certified pursuant to this section and provide that a designated organization may charge fees to cover reasonable costs associated with the training process; and
(4) recognize the training program of any person employing professional fertilizer applicators if it meets the training requirements established by the New Jersey Agricultural Experiment Station pursuant to this subsection.
f. The New Jersey Agricultural Experiment Station shall publish and maintain a list of all certified professional fertilizer applicators and make the list available on its Internet website.
b. Any person, other than a professional fertilizer applicator or person who sells fertilizer at retail, who violates this act, or any rule or regulation adopted pursuant thereto, may be subject to a penalty, as established by municipal ordinance, to be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this subsection.
c. (1) This act, and the rules and regulations adopted pursuant thereto, may be enforced by any municipality, county, local soil conservation district or local health agency.
(2) A local soil conservation district may institute a civil action for injunctive relief in Superior Court to enforce this act and to prohibit and prevent a violation of this act, or any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner.
b. The New Jersey Agricultural Experiment Station shall identify laboratories which participate in the North American Proficiency Testing Program of the Soil Science Society of America, follow the recommended soil testing procedures for the northeastern United States, are authorized to conduct soil tests to determine the level of nutrients required for turf, and provide a final report to the requestor with the results of the soil test that is consistent with the best management practices established by the New Jersey Agricultural Experiment Station.
"Over the counter drug" means a drug that contains a label which identifies the product as a drug, as required by 21 CFR s.201.66. The label shall include:
(1) a "Drug Facts" panel; or
(2) a statement of the "active ingredient" or "active ingredients" with a list of those ingredients contained in the compound, substance or preparation.
"Personal care product" means any article intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, or any item intended for use as a component thereof.
"Plastic" means a synthetic material made from linking monomers through a chemical reaction to create an organic polymer chain that can be molded or extruded at high heat into various solid forms retaining their defined shapes during the life cycle and after disposal.
"Synthetic plastic microbead" means any intentionally added non-biodegradable, solid plastic particle measuring less than five millimeters in size and used to exfoliate or cleanse in a rinse-off product.
b. On or after January 1, 2019, no person shall:
(1) sell, offer for sale, or offer for promotion in the State a personal care product containing synthetic plastic microbeads, except for an over the counter drug; or
(2) produce or manufacture in the State an over the counter drug that contains synthetic plastic microbeads.
c. On or after January 1, 2020, no person shall sell, offer for sale, or offer for promotion in the State an over the counter drug containing synthetic plastic microbeads.
b. The Commissioner of Environmental Protection may institute a civil action for injunctive relief to enforce the provisions of section 2 of this act and to prohibit and prevent a violation of this act, and the court may proceed in the action in a summary manner.
c. Nothing set forth in this act shall be construed as creating, establishing or authorizing a private cause of action by an aggrieved person against a person who has violated, or is alleged to have violated, the provisions of this act.
"Area of concern" means any location where contaminants are or were known or suspected to have been discharged, generated, manufactured, refined, transported, stored, handled, treated, or disposed, or where contaminants have or may have migrated;
"Authority" means the New Jersey Economic Development Authority established pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.);
"Brownfield development area" means an area that has been so designated by the department, in writing, pursuant to the provisions of section 7 of P.L.2005, c.223 (C.58:10B-25.1);
"Brownfield site" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant;
"Contamination" or "contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3);
"Department" means the Department of Environmental Protection;
"Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a contaminant onto the land or into the waters of the State;
"Engineering controls" means any mechanism to contain or stabilize contamination or ensure the effectiveness of a remedial action. Engineering controls may include, without limitation, caps, covers, dikes, trenches, leachate collection systems, signs, fences and physical access controls;
"Environmental opportunity zone" has the meaning given that term pursuant to section 3 of P.L.1995, c.413 (C.54:4-3.152);
"Final remediation document" means a no further action letter issued by the department pursuant to P.L.1993, c.139 (C.58:10B-1 et al.), or a response action outcome issued by a licensed site remediation professional pursuant to section 14 of P.L.2009, c.60 (C.58:10C-14);
"Financial assistance" means loans or loan guarantees;
"Institutional controls" means a mechanism used to limit human activities at or near a contaminated site, or to ensure the effectiveness of the remedial action over time, when contaminants remain at a contaminated site in levels or concentrations above the applicable remediation standard that would allow unrestricted use of that property. Institutional controls may include, without limitation, structure, land, and natural resource use restrictions, well restriction areas, and deed notices;
"Licensed site remediation professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12);
"Limited restricted use remedial action" means any remedial action that requires the continued use of institutional controls but does not require the use of an engineering control;
"No further action letter" means a written determination by the department that based upon an evaluation of the historical use of a particular site, or of an area of concern or areas of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no discharged contaminants present at the site, at the area of concern or areas of concern, at any other site to which a discharge originating at the site has migrated, or that any discharged contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations;
"Person" means an individual, corporation, company, partnership, firm, or other private business entity;
"Person responsible for conducting the remediation" means (1) any person who executes or is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or operator of an industrial establishment subject to P.L.1983, c.330 (C.13:1K-6 et al.), for the remediation of a discharge, (3) the owner or operator of an underground storage tank subject to P.L.1986, c.102 (C.58:10A-21 et seq.), for the remediation of a discharge, (4) any other person who discharges a hazardous substance or is in any way responsible for a hazardous substance, pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated site, or (5) any other person who is remediating a site;
"Preliminary assessment" means the first phase in the process of identifying areas of concern and determining whether contaminants are or were present at a site or have migrated or are migrating from a site, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any contaminant is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of the public records;
"Presumptive remedy" means a remedial action established by the department pursuant to paragraph (10) of subsection g. of section 35 of P.L.1993, c.139 (C.58:10B-12);
"Recreation and conservation purposes" means the use of lands for beaches, biological or ecological study, boating, camping, fishing, forests, greenways, hunting, natural areas, parks, playgrounds, protecting historic properties, water reserves, watershed protection, wildlife preserves, active sports, or a similar use for either public outdoor recreation or conservation of natural resources, or both;
"Remedial action" means those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the applicable health risk or environmental standards;
"Remedial action workplan" means a plan for the remedial action to be undertaken at a site, or at any area to which a discharge originating at a site is migrating or has migrated; a description of the remedial action to be used to remediate a site; a time schedule and cost estimate of the implementation of the remedial action; and any other information the department deems necessary;
"Remedial investigation" means a process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site and the problems presented by a discharge, and may include data collected, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions if necessary;
"Remediation" or "remediate" means all actions to investigate, clean up, or respond to any known, suspected, or threatened discharge of contaminants, including the preliminary assessment, site investigation, remedial investigation, and remedial action, or any portion thereof, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources;
"Remediation fund" means the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4);
"Remediation funding source" means the methods of financing the remediation of a discharge required to be established by a person performing the remediation pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3);
"Remediation standards" means the combination of numeric standards that establish a level or concentration, and narrative standards to which contaminants must be treated, removed, or otherwise cleaned for soil, groundwater, or surface water, as provided by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12) in order to meet the health risk or environmental standards;
"Response action outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained;
"Restricted use remedial action" means any remedial action that requires the continued use of engineering and institutional controls in order to meet the established health risk or environmental standards;
"Site investigation" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment;
"Unrestricted use remedial action" means any remedial action that does not require the continued use of engineering or institutional controls in order to meet the established health risk or environmental standards;
"Voluntarily perform a remediation" means performing a remediation without having been ordered or directed to do so by the department or by a court and without being compelled to perform a remediation pursuant to the provisions of P.L.1983, c.330 (C.13:1K-6 et al.).
The Legislature therefore declares that strict remediation standards are necessary to protect public health and safety and the environment; that these standards should be adopted based upon the risk posed by discharged hazardous substances; that unrestricted remedies for contaminated sites are preferable and the State must adopt policies that encourage their use; that institutional and engineering controls should be allowed only when the public health risk and environmental protection standards are met; and that in order to encourage the cleanup of contaminated sites, there must be finality in the process, the provision of financial incentives, liability protection for innocent parties who clean up, cleanup procedures that are cost effective and regulatory action that is timely and efficient.
b. A person who initiates a remediation at least 180 days after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) shall:
(1) retain a licensed site remediation professional to perform the remediation;
(2) notify the department of the name and license information of the licensed site remediation professional who has been retained to perform the remediation;
(3) conduct the remediation without the prior approval of the department, unless directed otherwise by the department;
(4) establish a remediation funding source if a remediation funding source is required pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3);
(5) pay all applicable fees and oversight costs as required by the department;
(6) provide access to the contaminated site to the department;
(7) provide access to all applicable documents concerning the remediation to the department;
(8) meet the mandatory remediation timeframes and expedited site specific timeframes established by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28); and
(9) obtain all necessary permits.
c. (1) Any person who initiates a remediation prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), or prior to the issuance of temporary licenses to site remediation professionals pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12), shall comply with the provisions of paragraphs (4) through (9) of subsection b. of this section.
(2) The department may require a person required to perform a remediation pursuant to subsection a. of this section, or a person who has initiated a remediation prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), to comply with the provisions of subsection b. of this section if, after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department (a) issues a final order or a penalty becomes due and payable, concerning the performance of the remediation, or (b) issues a demand for stipulated penalties pursuant to the provisions of an oversight document in which the person waived a right to a hearing on the penalties.
(3) No later than three years after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), a person responsible for conducting the remediation, no matter when the remediation is initiated, shall comply with the provisions of subsection b. of this section.
d. (1) The provisions of this section shall not apply to any person who remediates a discharge from an unregulated heating oil tank. For any person who remediates a discharge from an unregulated heating oil tank, the provisions of section 15 of P.L.2009, c.60 (C.58:10C-15) shall apply.
(2) The provisions of this section shall not apply to any person who: (a) does not own a contaminated site, (b) conducts a preliminary assessment or site investigation of the contaminated site for the purpose of conducting all appropriate inquiry into the previous ownership and uses of the property as provided in section 8 of P.L.1976, c.141 (C.58:10-23.11g), and (c) has not discharged a hazardous substance at the site or is not in any way responsible for a hazardous substance discharged at the site pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g).
(3) A person shall not be required to retain a licensed site remediation professional pursuant to this section to conduct sampling or investigation to confirm or evaluate a remediation performed or supervised by a retained licensed site remediation professional, provided that such sampling or investigation: (1) is not required pursuant to this section or any other law, rule, regulation, or order; (2) is not conducted in order to obtain a response action outcome; and (3) is not conducted in order to investigate, clean up, or respond to any known, suspected, or threatened discharge of a contaminant.
e. Any person who fails to comply with the provisions of this section shall be liable to the enforcement provisions established pursuant to section 22 of P.L.1976, c.141 (C.58:10-23.11u).
b. The regulations adopted by the department pursuant to subsection a. of this section shall provide that a person performing a remediation may deviate from the strict adherence to the regulations, in a variance procedure or by another method prescribed by the department, if that person can demonstrate that the deviation and the resulting remediation would be as protective of human health, safety, and the environment, as appropriate, as the department's regulations and that the health risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) and any applicable environmental standards would be met. Factors to be considered in determining if the deviation should be allowed are whether the alternative method:
(1) has been either used successfully or approved by the department in writing or similar situations;
(2) reflects current technology as documented in peer-reviewed professional journals;
(3) can be expected to achieve the same or substantially the same results or objectives as the method which it is to replace; and
(4) furthers the attainment of the goals of the specific remedial phase for which it is used.
c. To the extent practicable and in conformance with the standards for remediations as provided in section 35 of P.L.1993, c.139 (C.58:10-12), the department shall adopt rules and regulations that allow for certain remedial actions to be undertaken in a manner prescribed by the department without having to obtain prior approval from or submit detailed documentation to the department. A person who performs a remedial action in the manner prescribed in the rules and regulations of the department, and who certifies this fact to the department, shall obtain a final remediation document for that particular remedial action.
d. The department shall develop regulatory procedures that encourage the use of innovative technologies in the performance of remedial actions and other remediation activities.
e. Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations adopted pursuant thereto, and with section 502 of the "National Parks and Recreation Act of 1978," 16 U.S.C. s.471i.
f. Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Highlands preservation area shall be consistent with the provisions of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted pursuant thereto.
b. In the case of the remediation of a contaminated site performed by any person not subject to the provisions of subsection a. of this section, the fees for department oversight of the remediation performed after the effective date of P.L.2002, c.37 shall not include any indirect costs, but may include those program costs directly related to the oversight of the remediation and the costs related to the department's oversight charged to the department by other State departments or agencies.
c. In the case of the cleanup and removal of a discharged hazardous substance at a person's primary residence, the fees for department oversight of the remediation performed after the effective date of P.L.2002, c.37 shall not include any indirect costs, but may include only those program costs directly related to the oversight of the remediation.
d. The department shall not establish or impose a fee for the oversight of any cleanup and removal of a discharged hazardous substance or for the remediation of a contaminated site that includes direct program costs and indirect costs which together exceed seven and one-half percent of the cost of the remediation of a contaminated site or the cleanup and removal of a discharged hazardous substance.
The remediation funding source shall be established in an amount equal to or greater than the cost estimate of the implementation of the remediation (1) as approved by the department or as determined by the licensed site remediation professional, as applicable, in accordance with rules and regulations adopted by the department pursuant to section 29 of P.L.2009, c.60 (C.58:10C-29), (2) as provided in an administrative consent order or remediation agreement or remediation certification as required pursuant to subsection e. of section 4 of P.L.1983, c.330, (3) as stated in a departmental order or directive, or (4) as agreed to by a court, and shall be in effect for a term not less than the actual time necessary to perform the remediation at the site. Whenever the remediation cost estimate increases, the person required to establish the remediation funding source shall cause the amount of the remediation funding source to be increased to an amount at least equal to the new estimate. Whenever the remediation cost estimate decreases, the person required to obtain the remediation funding source may file a written request to the department to decrease the amount in the remediation funding source or may submit written documentation to the department certified by the licensed site remediation professional of the details of the decrease in the cost estimate, as applicable. The remediation funding source may be decreased to the amount of the new estimate upon written approval by the department delivered to the person who established the remediation funding source or upon submission of the certification by the licensed site remediation professional, as applicable.
b. The department may not require any other financial assurance by the person responsible for conducting the remediation other than that required in this section. In the case of a remediation performed pursuant to P.L.1983, c.330, the remediation funding source shall be established no more than 14 days after the approval by the department or the certification by the licensed site remediation professional of a remedial action workplan, upon approval of a remediation agreement pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or upon submission of a remediation certification pursuant to subsection e. of P.L.1983, c.330, unless the department approves an extension. In the case of a remediation performed pursuant to P.L.1976, c.141, the remediation funding source shall be established as provided in an administrative consent order signed by the parties, as provided by a court, or as directed or ordered by the department. In the case of a remediation performed under the department's oversight pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the remediation funding source shall be established at the time the person becomes subject to the department's oversight. The establishment of a remediation funding source for that part of the remediation funding source to be established by a grant or financial assistance from the remediation fund may be established for the purposes of this subsection by the application for a grant or financial assistance from the remediation fund and satisfactory evidence submitted to the department that the grant or financial assistance will be awarded. However, if the financial assistance or grant is denied or the department finds that the person responsible for establishing the remediation funding source did not take reasonable action to obtain the grant or financial assistance, the department shall require that the full amount of the remediation funding source be established within 14 days of the denial or finding. Except as provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the remediation funding source shall be evidenced by the establishment and maintenance of (1) a remediation trust fund, administered by an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or State agency, or governed by court rule, (2) an environmental insurance policy, issued by an entity licensed by the Department of Banking and Insurance to transact business in the State of New Jersey, to fund the remediation, (3) a line of credit from a financial institution regulated pursuant to State or federal law and satisfactory to the department authorizing the person responsible for performing the remediation to borrow money, (4) a self-guarantee, (5) a letter of credit from a financial institution regulated pursuant to State or federal law that guarantees the performance of the remediation by the person to the satisfaction of the department, or (6) a surety bond from an entity that is listed as an acceptable surety on federal bonds in United States Treasury Department Circular 570, or by any combination thereof. Where it can be demonstrated that a person cannot establish and maintain a remediation funding source for the full cost of the remediation by a method specified in this subsection, that person may establish the remediation funding source for all or a portion of the remediation, by securing financial assistance from the Hazardous Discharge Site Remediation Fund as provided in section 29 of P.L.1993, c.139 (C.58:10B-7).
c. A remediation trust fund shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the trust agreement shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9) is approved, (2) within 14 days of submission to the department of a remedial action workplan certified by a licensed site remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330, or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. The remediation trust fund agreement shall conform to a model trust fund agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or New Jersey agency.
The trust fund agreement shall provide that the remediation trust fund may not be revoked or terminated by the person required to establish the remediation funding source or by the trustee without the written consent of the department. The person who establishes the remediation funding source in the form of a trust fund may use the remediation funding source to pay for the actual cost of the remediation. The trustee shall disburse to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department or the licensed site remediation professional authorizes, in writing, to be disbursed. The trustee shall release to the person who established the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department authorizes, in writing, to be released. For any remediation subject to the oversight of the department pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the person entitled to receive money from the remediation trust fund shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination by the department that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement of moneys from the remediation trust fund in the amount of the documented costs.
The department shall return the original remediation trust fund agreement to the trustee for termination after the department receives an alternative remediation funding source as specified in this section or the department notifies the person required to establish and maintain the remediation funding source that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.
d. An environmental insurance policy shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the insurance policy shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement, as provided in subsection e. of section 4 of P.L.1983, c.330, is approved, (2) within 14 days of submission to the department of a remedial action workplan certified by a licensed site remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. The environmental insurance policy shall be issued by an entity that is licensed by the New Jersey Department of Banking and Insurance to transact business in the State.
An environmental insurance policy cannot be revoked or terminated without the prior written approval of the department, except upon failure by the insured to pay the premium. The issuer of the environmental insurance policy may revoke or terminate the policy for failure to pay the premium only after notifying the person who established the remediation funding source and the department, by certified mail, of the decision to revoke or terminate the policy.
The insurance company that provides the environmental insurance policy shall reduce the policy only as the department directs in writing. The insurance company that provides the environmental insurance policy shall release to the department or to a person authorized to perform the remediation pursuant to subsection g. of this section only moneys authorized by the department, in writing, to be released. The department shall authorize, in writing, the termination of the environmental insurance policy after the department receives an alternative remediation funding source as specified in this section or the department notifies the person required to establish and maintain the funding source that the person is no longer required to maintain a remediation funding source for the remediation of the contaminated site.
e. A line of credit shall be established pursuant to the provisions of this subsection. A line of credit shall allow the person establishing it to borrow money up to a limit established in a written agreement in order to pay for the cost of the remediation for which the line of credit was established. An originally signed duplicate of the line of credit agreement shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved, (2) within 14 days of submission to the department of a remedial action workplan certified by a licensed site remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. The line of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The line of credit shall be issued by an institution that is licensed by the New Jersey Department of Banking and Insurance to transact business in the State, or by a federally regulated bank.
The line of credit shall not be allowed to expire, unless the institution provides the appropriate notification to the department and the borrower, as defined in a model agreement established by the department. The person who establishes the remediation funding source in the form of a line of credit may use the remediation funding source to pay for the actual cost of the remediation. The institution providing the line of credit shall disburse to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department or the licensed site remediation professional authorizes, in writing, to be disbursed. The institution providing the line of credit shall release to the person who established the remediation funding source, or to the department or transferee of the property as appropriate, only those moneys as the department authorizes, in writing, to be released.
The department shall return the original line of credit agreement to the institution providing the line of credit for termination after the department receives an alternative remediation funding source as specified in this section, or after the department notifies the person required to establish and maintain the remediation funding source that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.
f. A person may self-guarantee a remediation funding source upon the submittal of documentation to the department demonstrating that the cost of the remediation would not exceed one-third of the tangible net worth of the person required to establish the remediation funding source, and that the person has a cash flow sufficient to assure the availability of sufficient moneys for the remediation during the time necessary for the remediation. Documentation shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved, (2) within 14 days of submission to the department of a remedial action workplan certified by a licensed site remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification pursuant to the department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. Satisfactory documentation of a person's capacity to self-guarantee a remediation funding source shall consist of audited financial statements, in which the auditor expresses an unqualified opinion, that includes a statement of income and expenses or similar statement of that person and the balance sheet or similar statement of assets and liabilities as used by that person for the fiscal year of the person making the application that ended closest in time to the date of the self-guarantee application. In the case of a special purpose entity established specifically for the purpose of acquiring and redeveloping a contaminated site, and for which a statement of income and expenses is not available, the documentation shall include a statement of assets and liabilities certified by a certified public accountant. The self-guarantee application shall be certified as true to the best of the applicant's information, knowledge, and belief, by the chief financial, or similar officer or employee, or general partner, or principal of the person making the self-guarantee application. A person shall be deemed by the department to possess the required cash flow pursuant to this section if that person's gross receipts exceed its gross payments in that fiscal year in an amount at least equal to the estimated costs of completing the remedial action workplan schedule to be performed in the 12-month period following the date on which the application for self-guarantee is made and the individual or entity possesses a net cash flow provided by operating activities in an amount at least equal to the estimated costs of completing the remediation in the 12-month period following the date the application is made. In the event that a self-guarantee is required for a period of more than one year, applications for a self-guarantee shall be renewed annually pursuant to this subsection for each successive year. The department may establish requirements and reporting obligations to ensure that the person proposing to self-guarantee a remediation funding source meets the criteria for self-guaranteeing prior to the initiation of remedial action and until completion of the remediation.
g. (1) If the person required to establish the remediation funding source fails to perform the remediation as required, or fails to meet the conditions established pursuant to paragraph (3) of subsection a. of section 27 of P.L.2009, c.60 (C.58:10C-27) or section 1 of P.L.2013, c.283 (C.58:10C-27.1), or the mandatory remediation timeframes or expedited site specific timeframes established pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28) for the performance of the remedial action, the department shall make a written determination of this fact. A copy of the determination by the department shall be delivered to the person required to establish the remediation funding source and, in the case of a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), to any transferee of the property. Following this written determination, the department may perform the remediation in place of the person required to establish the remediation funding source. In order to finance the cost of the remediation the department may make disbursements from the remediation funding source, or, if sufficient moneys are not available from those funds, from the remediation guarantee fund created pursuant to section 45 of P.L.1993, c.139 (C.58:10B-20).
(2) The transferee of property subject to a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), may, at any time after the department's determination of nonperformance by the owner or operator required to establish the remediation funding source, petition the department, in writing, with a copy being sent to the owner and operator, for authority to perform the remediation at the industrial establishment. The department, upon a determination that the transferee is competent to do so, may grant that petition which shall authorize the transferee to perform the remediation as specified in an approved remedial action workplan, or to perform the activities as required in a remediation agreement, or as provided in a remediation certification, and to avail itself of the moneys in the remediation trust fund, letter of credit, line of credit, or surety bond, or to make claims upon the environmental insurance policy for these purposes. The petition of the transferee shall not be granted by the department if the owner or operator continues or begins to perform its obligations within 14 days of the petition being filed with the department.
(3) After the department has begun to perform the remediation in the place of the person required to establish the remediation funding source or has granted the petition of the transferee to perform the remediation, the person required to establish the remediation funding source shall not be permitted by the department to continue its performance obligations except upon the agreement of the department or the transferee, as applicable, or except upon a determination by the department that the transferee is not adequately performing the remediation.
h. A letter of credit shall be established pursuant to the provisions of this subsection. A letter of credit shall allow a person to guarantee the availability of funds up to a limit established in a written agreement in order to guarantee the payment of the cost of the remediation for which the letter of credit was established. An originally signed duplicate of the letter of credit agreement shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9) is approved, (2) within 14 days of submission to the department of a remedial action workplan certified by a licensed site remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. The letter of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The letter of credit shall be issued by an entity that is licensed by the New Jersey Department of Banking and Insurance to transact business in the State, or by a federally regulated bank.
The letter of credit shall not be allowed to expire unless the financial institution provides the appropriate notification to the department and the application, as defined by a model agreement established by the department. The financial institution that provides the letter of credit shall release to the department or to a person authorized to perform the remediation pursuant to subsection g. of this section, only moneys authorized by the department, in writing, to be released. The department shall return the original letter of credit to the financial institution providing the letter of credit for termination after the department receives an alternative remediation funding source as authorized in this section, or after the department notifies the person required to establish and maintain the remediation funding source that that person is no longer required to maintain a remediation funding source for the remediation of the contaminated site.
i. A surety bond shall be established pursuant to the provisions of this subsection. A surety bond shall allow a person to guarantee the availability of funds up to a limit established in a written agreement in order to guarantee the payment of the cost of the remediation for which the surety bond was established. An originally signed duplicate of the surety bond agreement shall be delivered to the department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9) is approved, (2) within 14 days of submission to the department of a licensed site remediation professional certified remedial action workplan as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative consent order, civil order, or order of the department, as applicable. The surety bond agreement shall conform to a model agreement established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The surety company issuing the bond must be a company that is listed as an acceptable surety on federal bonds in United States Treasury Department Circular 570.
The surety bond shall not be cancelled unless the surety company provides the appropriate notice of cancellation to the department and the principal, as defined in a model agreement established by the department. The surety company that provides the surety bond shall release to the department, or to a person authorized to perform the remediation pursuant to subsection g. of this section, only monies authorized by the department, in writing, to be released. The department shall return the original surety bond to the surety company for termination after the department receives an alternative remediation funding source as specified in this section or the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.
b. Upon the replacement of the person performing a remediation of contaminated property with a local government unit pursuant to subsection a. of this section, the department may release the person performing the remediation from the requirement to establish a remediation funding source as otherwise required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).
b. The provisions of this section shall not apply to any property for which a remediation trust fund has been established pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3).
b. The remediation fund shall be credited with:
(1) moneys as are appropriated by the Legislature;
(2) moneys deposited into the fund as repayment of principal and interest on outstanding loans made from the fund;
(3) any return on investment of moneys deposited in the fund;
(4) (Deleted by amendment, P.L.2009, c.60);
(5) moneys deposited in the fund as repayment of recoverable grants made by the New Jersey Redevelopment Authority for brownfield redevelopment;
(6) moneys deposited into the fund from cost recovery subrogation actions; and
(7) moneys made available to the authority for the purposes of the fund.
(2) Financial assistance rendered to persons who voluntarily perform a remediation or perform a remediation in an environmental opportunity zone may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.
(3) Financial assistance rendered to persons who do not have to provide a remediation funding source for the part of the remediation that involves an unrestricted use remedial action may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.
b. Financial assistance may be rendered from the remediation fund to (1) owners or operators of industrial establishments who are required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), upon closing operations or prior to the transfer of ownership or operations of an industrial establishment, (2) persons who are liable for the cleanup and removal costs of a hazardous substance pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), and (3) persons who voluntarily perform a remediation of a discharge of a hazardous substance or hazardous waste.
c. Financial assistance and grants may be made from the remediation fund to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for real property: (1) on which it holds a tax sale certificate; (2) that it has acquired through foreclosure or other similar means; or (3) that it has acquired, or in the case of a county governed by a board of chosen freeholders, has passed a resolution or, in the case of a municipality or a county operating under the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.), has passed an ordinance or other appropriate document to acquire, by voluntary conveyance for the purpose of redevelopment, for renewable energy generation or for recreation and conservation purposes. Financial assistance and grants may only be awarded for real property on which there has been a discharge or on which there is a suspected discharge of a hazardous substance or hazardous waste.
d. (Deleted by amendment, P.L.2017, c.353)
e. Grants may be made from the remediation fund to qualifying persons who propose to perform a remedial action that would result in an unrestricted use remedial action.
f. Grants may be made from the remediation fund to municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for the preliminary assessment, site investigation, remedial investigation, and remedial action for real property where there is a discharge or suspected discharge of a hazardous substance or hazardous waste within a brownfield development area. Grants may only be made for a remedial action pursuant to this subsection when there is a confirmed discharge of a hazardous substance or hazardous waste. Grants made pursuant to this subsection for a remedial action may not exceed 75 percent of the total costs of the remedial action. An ownership interest in the contaminated property shall not be required in order for a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) to receive a grant for a preliminary assessment, site investigation, and remedial investigation for real property where there is a discharge or suspected discharge of a hazardous substance or hazardous waste in a brownfield development area. Notwithstanding the limitation on the total amount of financial assistance and grants that may be awarded in any one year pursuant to subsection b. of section 28 of P.L.1993, c.139 (C.58:10B-6), the authority may award an additional amount of financial assistance and grants in any one year, of up to $2,000,000, to any one municipality, county, or redevelopment entity for the remediation of property in a brownfield development area.
(1) Moneys shall be allocated for financial assistance to persons, for remediation of real property located in a qualifying municipality as defined in section 1 of P.L.1978, c.14 (C.52:27D-178);
(2) Moneys shall be allocated to: (a) municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for:
(i) projects in brownfield development areas pursuant to subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5),
(ii) matching grants up to a cumulative total amount from the fund of $10,000,000 per year of up to 75 percent of the costs of the remedial action for projects involving the redevelopment of contaminated property for recreation and conservation purposes, provided that the use of the property for recreation and conservation purposes is included in the comprehensive plan for the development or redevelopment of contaminated property, up to 75 percent of the costs of the remedial action for projects involving the redevelopment of contaminated property for renewable energy generation, or up to 50 percent of the costs of the remedial action for projects involving the redevelopment of contaminated property for affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.),
(iii) grants for preliminary assessment, site investigation or remedial investigation of a contaminated site,
(iv) financial assistance or grants for the implementation of a remedial action, or
(v) financial assistance for remediation activities at sites that have been contaminated by a discharge of a hazardous substance or hazardous waste, or at which there is an imminent and significant threat of a discharge of a hazardous substance or hazardous waste, and the discharge or threatened discharge poses or would pose an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area; or
(b) persons for financial assistance for remediation activities at sites that have been contaminated by a discharge of a hazardous substance or hazardous waste, or at which there is an imminent and significant threat of a discharge of a hazardous substance or hazardous waste, and the discharge or threatened discharge poses or would pose an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area.
Except as provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5), financial assistance and grants to municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be made for real property: (1) on which they hold a tax sale certificate; (2) that they have acquired through foreclosure or other similar means; or (3) that they have acquired, or, in the case of a county governed by a board of chosen freeholders, have passed a resolution or, in the case of a municipality or a county operating under the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.), have passed an ordinance or other appropriate document to acquire, by voluntary conveyance for the purpose of redevelopment, or for recreation and conservation purposes. Financial assistance and grants may only be awarded for real property on which there has been or on which there is suspected of being a discharge of a hazardous substance or a hazardous waste. Grants and financial assistance provided pursuant to this paragraph shall be used for performing preliminary assessments, site investigations, remedial investigations, and remedial actions on real property in order to determine the existence or extent of any hazardous substance or hazardous waste contamination, and to remediate the site in compliance with the applicable health risk and environmental standards on those properties. No financial assistance or grants for a remedial action shall be awarded until the municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), actually owns the real property, provided that a matching grant for 75 percent of the costs of a remedial action for a project involving the redevelopment of contaminated property for recreation and conservation purposes, or a matching grant for 50 percent of the costs of a remedial action for a project involving the redevelopment of contaminated property for affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.) may be made to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) even if it does not own the real property and a grant may be made to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) for a remediation in a brownfield development area pursuant to subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5) even if the entity does not own the real property. No grant shall be awarded for a remedial action for a project involving the redevelopment of contaminated property for recreation or conservation purposes unless the use of the property is preserved for recreation and conservation purposes by conveyance of a development easement, conservation restriction or easement, or other restriction or easement permanently restricting development, which shall be recorded and indexed with the deed in the registry of deeds for the county. No grant shall be awarded pursuant to this paragraph to a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) unless that entity has adopted by ordinance or resolution a comprehensive plan specifically for the development or redevelopment of contaminated or potentially contaminated real property in that municipality or the entity can demonstrate its commitment to the authority that the subject real property will be developed or redeveloped within a three-year period from the completion of the remediation. Until adoption of the criteria required pursuant to paragraph (8) of subsection a. of section 30 of P.L.1993, c.139 (C.58:10B-8), the authority shall use the criteria provided in this paragraph in determining the award of grants from the remediation fund;
(3) Moneys shall be allocated for financial assistance to persons who voluntarily perform a remediation of a hazardous substance or hazardous waste discharge;
(4) (Deleted by amendment, P.L.2017, c.353)
(5) Moneys shall be allocated for (a) financial assistance to persons who own and plan to remediate an environmental opportunity zone for which an exemption from real property taxes has been granted pursuant to section 5 of P.L.1995, c.413 (C.54:4-3.154), or (b) matching grants for up to 25 percent of the project costs to qualifying persons, municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), who propose to perform a remedial action for the implementation of an unrestricted use remedial action except that no grant awarded pursuant to this paragraph may exceed $250,000; and
(6) At least 30 percent of the moneys in the remediation fund shall be allocated for grants to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) for the preliminary assessment, site investigation, remedial investigation, or remedial action of a site, not located in a brownfield development area, that has been contaminated by a discharge or a suspected discharge of a hazardous substance or hazardous waste as authorized in this subsection. The remainder of the moneys in the remediation fund shall be allocated for any of the purposes authorized in this section. For the purposes of paragraph (5) of this subsection, "qualifying persons" means any person who has a net worth of not more than $2,000,000 and "project costs" means that portion of the total costs of a remediation that is specifically to implement an unrestricted use remedial action.
b. Loans issued from the remediation fund shall be for a term not to exceed ten years, except that upon the transfer of ownership of any real property for which the loan was made, the unpaid balance of the loan shall become immediately payable in full. The unpaid balance of a loan for the remediation of real property that is transferred by devise or succession shall not become immediately payable in full, and loan repayments shall be made by the person who acquires the property. Loans to municipalities, counties, and redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), shall bear an interest rate equal to 2 points below the Federal Discount Rate at the time of approval or at the time of loan closing, whichever is lower, except that the rate shall be no lower than 3 percent. All other loans shall bear an interest rate equal to the Federal Discount Rate at the time of approval or at the time of the loan closing, whichever is lower, except that the rate on such loans shall be no lower than five percent. Financial assistance and grants may be issued for up to 100 percent of the estimated applicable remediation cost, except that the cumulative maximum amount of financial assistance which may be issued to a person, in any calendar year, for one or more properties, shall be $500,000. Financial assistance and grants to any one municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may not exceed $3,000,000 in any calendar year except as provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5). Grants to a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be for up to 100 percent of the total costs of the preliminary assessment, site investigation, or remedial investigation subject to the provisions of section 5 of P.L.2017, c.353 (C.58:10B-6.2). Grants to a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may not exceed 75 percent of the total costs of the remedial action at any one site. Repayments of principal and interest on the loans issued from the remediation fund shall be paid to the authority and shall be deposited into the remediation fund.
c. No person, other than a qualified person planning to use an unrestricted use remedial action for the cost of the remedial action, a person performing a remediation in an environmental opportunity zone, or a person voluntarily performing a remediation, shall be eligible for financial assistance from the remediation fund to the extent that person is capable of establishing a remediation funding source for the remediation as required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).
d. The authority may use a sum that represents up to 2 percent of the moneys issued as financial assistance or grants from the remediation fund each year for administrative expenses incurred in connection with the operation of the fund and the issuance of financial assistance and grants.
e. Prior to March 1 of each year, the authority shall submit to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, a report detailing the amount of money that was available for financial assistance and grants from the remediation fund for the previous calendar year, the amount of money estimated to be available for financial assistance and grants for the current calendar year, the amount of financial assistance and grants issued for the previous calendar year and the category for which each financial assistance and grant was rendered, the amount of remediation costs expended for each site for the previous calendar year for which financial assistance or a grant has been approved and the balance remaining on each financial assistance or grant, and any suggestions for legislative action the authority deems advisable to further the legislative intent to facilitate remediation and promote the redevelopment and use of existing industrial sites.
b. Grants may be provided pursuant to the provisions of this act to the following municipalities for the following projects:
Municipality Amount
Bayonne $ 344,657
Camden 500,000
Camden-Nipper 1,500,000
Camden-Trailways 750,000
East Orange 100,000
Glassboro 94,000
Long Branch 350,000
Newark K-Mart 673,500
Newark Bergen Street 50,000
New Brunswick-Heldrich Center 1,000,000
Perth Amboy 845,000
Plainfield 750,000
Pleasantville 1,000,000
Rahway-80 East Milton 750,000
Rahway-Main & Monroe 25,000
Trenton 84,000
$8,816,157
c. Any repayments to the New Jersey Redevelopment Authority for grants or other financial assistance made for brownfields remediation or redevelopment pursuant to the provisions of this act shall be paid to the New Jersey Economic Development Authority and shall be deposited into the fund.
d. As used in this act, "brownfield site" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.
(1) preliminary assessment or site investigation of a contaminated site shall be expended within two years after the date of the award;
(2) remedial investigation of a contaminated site shall be expended within five years after the date of the award.
b. Failure to expend an award of financial assistance or a grant from the remediation fund within the time limits established in subsection a. of this section shall result in cancellation of the award.
c. No award of financial assistance or a grant shall be approved until the applicant demonstrates to the satisfaction of the authority that it has expended or will expend the full amount of any previous financial assistance or grant awarded under P.L.1993, c.139 (C.58:10B-1 et seq.) to that applicant for the same property.
(1) Sites on which there has been a discharge and the discharge poses an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area shall be given first priority;
(2) (Deleted by amendment, P.L.2017, c.353)
(3) Sites that are owned by a municipality in a brownfield development area shall be given second priority; and
(4) Sites in areas designated as Planning Area 1 (Metropolitan) and Planning Area 2 (Suburban) pursuant to the "State Planning Act," P.L.1985, c.398 (C.52:18A-196 et seq.), shall be given third priority.
The priority ranking of applicants within any priority category enumerated in this section for awarding financial assistance and grants from the remediation fund shall be based upon the date of receipt by the authority of an application from the applicant and on readiness to proceed with remediation as determined by the department and the authority. If an application is determined to be incomplete by the authority, an applicant shall have 30 days from receipt of written notice of incompleteness to file any additional information as may be required by the authority for a completed application. If an applicant fails to file the additional information within those 30 days, the filing date for that application for financial assistance or a grant for a site that is not within a priority category enumerated in this section, shall be the date that the additional information is received by the authority. An application shall be deemed complete when all the information required by the authority has been received in the required form.
b. Within 90 days, for a private entity, or 180 days for a municipality, county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), of notice of approval of a financial assistance or grant application, an applicant shall submit to the authority an executed contract for the remediation activities for which the financial assistance or grant application was made. The contract shall be consistent with the terms and conditions for which the financial assistance or grant was rendered. Failure to submit an executed contract within the time provided, without good cause, shall constitute grounds for the alteration of an applicant's priority ranking for the awarding of financial assistance or a grant.
(1) require a financial assistance or grant recipient to provide to the authority, as necessary or upon request, evidence that financial assistance or grant moneys are being spent for the purposes for which the financial assistance or grant was made, and that the applicant is adhering to all of the terms and conditions of the financial assistance or grant agreement;
(2) require the financial assistance or grant recipient to provide access at reasonable times to the subject property to determine compliance with the terms and conditions of the financial assistance or grant;
(3) establish a priority system for rendering financial assistance or grants for remediations identified by the department as involving an imminent and significant threat to a public water source, human health, or to a sensitive or significant ecological area pursuant to subsection a. of section 28 of P.L.1993, c.139 (C.58:10B-6);
(4) (Deleted by amendment, P.L.2009, c.60);
(5) provide that an applicant for financial assistance or a grant pay a reasonable fee for the application which shall be used by the authority for the administration of the loan and grant program;
(6) provide that where financial assistance to a person other than a municipality, a county, or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), is for a portion of the remediation cost, that the proceeds thereof not be disbursed to the applicant until the costs of the remediation for which a remediation funding source has been established has been expended;
(7) provide that the amount of a grant for the costs of a remedial action shall not include the cost to remediate a site to meet residential soil remediation standards if the local zoning ordinances adopted pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) do not allow for residential use;
(8) adopt criteria, which must be met by a municipality, county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) that applies for a grant pursuant to paragraph (2) of subsection a. of section 28 of P.L.1993, c.139 (C.58:10B-6), that the subject real property will be developed or redeveloped within a three-year period from the completion of the remediation; and
(9) adopt such other requirements as the authority shall deem necessary or appropriate in carrying out the purposes for which the Hazardous Discharge Site Remediation Fund was created.
b. An applicant for financial assistance or a grant shall be required to:
(1) provide proof, as determined sufficient by the authority, that the applicant, where applicable, cannot establish a remediation funding source for all or part of the remediation costs, as required by section 25 of P.L.1993, c.139 (C.58:10B-3). The provisions of this paragraph do not apply to grants to innocent persons, grants for the use of innovative technologies, or grants for the implementation of unrestricted use remedial actions or limited restricted use remedial actions or to financial assistance or grants to municipalities, counties, or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4); and
(2) demonstrate the ability to repay the amount of the financial assistance and interest, and, if necessary, to provide adequate collateral to secure the financial assistance amount.
c. Information submitted as part of a loan or grant application or agreement shall be deemed a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).
d. In establishing requirements for financial assistance or grant applications and financial assistance or grant agreements, the authority:
(1) shall minimize the complexity and costs to applicants or recipients of complying with such requirements;
(2) may not require financial assistance or grant conditions that interfere with the everyday normal operations of the recipient's business activities, except to the extent necessary to ensure the recipient's ability to repay the financial assistance and to preserve the value of the loan collateral; and
(3) shall expeditiously process all financial assistance or grant applications in accordance with a schedule established by the authority for the review and the taking of final action on the application, which schedule shall reflect the degree of complexity of a financial assistance or grant application.
b. The New Jersey Economic Development Authority shall not award a grant or financial assistance from the Hazardous Discharge Site Remediation Fund if the applicant relinquishes, impairs, or waives, or has relinquished, impaired, or waived, any right to recover the costs of the remediation against an insurance carrier, discharger, or person in any way responsible for a hazardous substance pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g).
c. In any action by the department to enforce a right of subrogation, the department shall be entitled to invoke any right or defense available to the recipient of a grant or financial assistance from the Hazardous Discharge Site Remediation Fund.
d. All moneys collected in a cost recovery subrogation action shall be deposited into the Hazardous Discharge Site Remediation Fund.
b. Nothing in sections 23 through 43 of P.L.1993, c.139 (C.58:10B-1 et seq.) shall be construed to:
(1) impose any obligation on the State for any financial assistance or grant commitments rendered by the authority, and the authority's obligations shall be limited to the amount of otherwise unobligated moneys available in the fund therefor; or
(2) impose any obligation on the authority for the quality of any work performed pursuant to a remediation undertaken with financial assistance or a grant rendered pursuant to section 28 of P.L.1993, c.139 (C.58:10B-6).
b. By February 1 of each year, the department shall issue a report to the Senate Environment Committee and to the Assembly Environment and Solid Waste Committee, or their successors, listing, for the prior calendar year, each person who owed the remediation funding source surcharge, the amount of the surcharge paid, and the total amount collected.
Until the minimum remediation standards for the protection of public health and safety as described herein are adopted, the department shall apply public health and safety remediation standards for contamination at a site on a case-by-case basis based upon the considerations and criteria enumerated in this section.
The department may not require any person to perform an ecological evaluation of any area of concern that consists of an underground storage tank storing heating oil for on-site consumption in a one to four family residential building.
b. In developing minimum remediation standards the department shall:
(1) base the standards on generally accepted and peer reviewed scientific evidence or methodologies;
(2) base the standards upon reasonable assumptions of exposure scenarios as to amounts of contaminants to which humans or other receptors will be exposed, when and where those exposures will occur, and the amount of that exposure;
(3) avoid the use of redundant conservative assumptions. The department shall avoid the use of redundant conservative assumptions by the use of parameters that provide an adequate margin of safety and which avoid the use of unrealistic conservative exposure parameters and which guidelines make use of the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable;
(4) where feasible, establish the remediation standards as numeric or narrative standards setting forth acceptable levels or concentrations for particular contaminants; and
(5) consider and utilize, in the absence of other standards used or developed by the Department of Environmental Protection and the United States Environmental Protection Agency, the toxicity factors, slope factors for carcinogens and reference doses for non-carcinogens from the United States Environmental Protection Agency's Integrated Risk Information System (IRIS).
c. (1) The department shall develop residential and nonresidential soil remediation standards that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water, the residential and nonresidential soil remediation standards shall be protective of groundwater and surface water. Residential soil remediation standards shall be set at levels or concentrations of contamination for real property based upon the use of that property for residential or similar uses and which will allow the unrestricted use of that property without the need of engineering devices or any institutional controls and without exceeding a health risk standard greater than that provided in subsection d. of this section. Nonresidential soil remediation standards shall be set at levels or concentrations of contaminants that recognize the lower likelihood of exposure to contamination on property that will not be used for residential or similar uses, which will allow for the unrestricted use of that property for nonresidential purposes, and that can be met without the need of engineering controls. Whenever real property is remediated to a nonresidential soil remediation standard, except as otherwise provided in paragraph (3) of subsection g. of this section, the department shall require, pursuant to section 36 of P.L.1993, c.139 (C.58:10B-13), that the use of the property be restricted to nonresidential or other uses compatible with the extent of the contamination of the soil and that access to that site be restricted in a manner compatible with the allowable use of that property.
(2) The department may develop differential remediation standards for surface water or groundwater that take into account the current, planned, or potential use of that water in accordance with the "Clean Water Act" (33 U.S.C. s.1251 et seq.) and the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.).
d. The department shall develop minimum remediation standards for soil, groundwater, and surface water intended to be protective of public health and safety taking into account the provisions of this section. In developing these minimum health risk remediation standards the department shall identify the hazards posed by a contaminant to determine whether exposure to that contaminant can cause an increase in the incidence of an adverse health effect and whether the adverse health effect may occur in humans. The department shall set minimum soil remediation health risk standards for both residential and nonresidential uses that:
(1) for human carcinogens, as categorized by the United States Environmental Protection Agency, will result in an additional cancer risk of one in one million;
(2) for noncarcinogens, will limit the Hazard Index for any given effect to a value not exceeding one.
The health risk standards established in this subsection are for any particular contaminant and not for the cumulative effects of more than one contaminant at a site.
e. Remediation standards and other remediation requirements established pursuant to this section and regulations adopted pursuant thereto shall apply to remediation activities required pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," sections 1 through 25 of P.L.1989, c.34 (C.13:1E-48.1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.), the "Sanitary Landfill Facility Closure and Contingency Fund Act," P.L.1981, c.306 (C.13:1E-100 et seq.), the "Regional Low-Level Radioactive Waste Disposal Facility Siting Act," P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property. However, nothing in this subsection shall be construed to limit the authority of the department to establish discharge limits for pollutants or to prescribe penalties for violations of those limits pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), or to require the complete removal of nonhazardous solid waste pursuant to law.
f. (1) A person performing a remediation of contaminated real property, in lieu of using the established minimum soil remediation standard for either residential use or nonresidential use adopted by the department pursuant to subsection c. of this section, may submit to the department a request to use an alternative residential use or nonresidential use soil remediation standard. The use of an alternative soil remediation standard shall be based upon site specific factors which may include (1) physical site characteristics which may vary from those used by the department in the development of the soil remediation standards adopted pursuant to this section; or (2) a site specific risk assessment. If a person performing a remediation requests to use an alternative soil remediation standard based upon a site specific risk assessment, that person shall demonstrate to the department that the requested deviation from the risk assessment protocol used by the department in the development of soil remediation standards pursuant to this section is consistent with the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C.s.9601 et seq. and other statutory authorities as applicable. A site specific risk assessment may consider exposure scenarios and assumptions that take into account the form of the contaminant present, natural biodegradation, fate and transport of the contaminant, available toxicological data that are based upon generally accepted and peer reviewed scientific evidence or methodologies, and physical characteristics of the site, including, but not limited to, climatic conditions and topographic conditions. Nothing in this subsection shall be construed to authorize the use of an alternative soil remediation standard in those instances where an engineering control is the appropriate remedial action, as determined by the department, to prevent exposure to contamination.
Upon a determination by the department that the requested alternative remediation standard satisfies the department's regulations, is protective of public health and safety, as established in subsection d. of this section, and is protective of the environment pursuant to subsection a. of this section, the alternative residential use or nonresidential use soil remediation standard shall be approved by the department. The burden to demonstrate that the requested alternative remediation standard is protective rests with the person requesting the alternative standard and the department may require the submission of any documentation as the department determines to be necessary in order for the person to meet that burden.
(2) The department may, upon its own initiative, require an alternative remediation standard for a particular contaminant for a specific real property site, in lieu of using the established minimum residential use or nonresidential use soil remediation standard adopted by the department for a particular contaminant pursuant to this section. The department may require an alternative remediation standard pursuant to this paragraph upon a determination by the department, based on the weight of the scientific evidence, that due to specific physical site characteristics of the subject real property, including, but not limited to, its proximity to surface water, the use of the adopted residential use or nonresidential use soil remediation standards would not be protective, or would be unnecessarily overprotective, of public health or safety or of the environment, as appropriate.
g. The development, selection, and implementation of any remediation standard or remedial action shall ensure that it is protective of public health, safety, and the environment, as applicable, as provided in this section. In determining the appropriate remediation standard or remedial action that shall occur at a site, the department and any person performing the remediation, shall base the decision on the following factors:
(1) Unrestricted use remedial actions, limited restricted use remedial actions and restricted use remedial actions shall be allowed except that unrestricted use remedial actions and limited restricted use remedial actions shall be preferred over restricted use remedial actions. For any remediation initiated one year after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department shall require the use of an unrestricted use remedial action, or a presumptive remedy or an alternative remedy as provided in paragraph (10) of this subsection, at a site or area of concern where new construction is proposed for residential purposes, for use as a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), or as a public school or private school as defined in N.J.S.18A:1-1, as a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.), or where there will be a change in the use of the site to residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. For any remediation initiated on or after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the department may require the use of an unrestricted use remedial action or a presumptive remedy as provided in guidelines adopted pursuant to paragraph (10) of this subsection for a site or area of concern that is to be used for residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. Except as provided in this subsection, and section 27 of P.L.2009, c.60 (C.58:10C-27), the department, however, may not disapprove the use of a restricted use remedial action or a limited restricted use remedial action so long as the selected remedial action meets the health risk standard established in subsection d. of this section, and where, as applicable, is protective of the environment. Except as provided in this subsection and section 27 of P.L.2009, c.60 (C.58:10C-27), the choice of the remedial action to be implemented shall be made by the person responsible for conducting the remediation in accordance with regulations adopted by the department and that choice of the remedial action shall be approved by the department if all the criteria for remedial action selection enumerated in this section, as applicable, are met. Except as provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the department may not require a person to compare or investigate any alternative remedial action as part of its review of the selected remedial action. The department may disapprove the selection of a remedial action for a site on which the proposed remedial action will render the property unusable for future redevelopment or for recreational use;
(2) Contamination may, upon the department's approval, be left onsite at levels or concentrations that exceed the minimum soil remediation standards for residential use if the implementation of institutional or engineering controls at that site will result in the protection of public health, safety and the environment at the health risk standard established in subsection d. of this section, if the requirements established in subsections a., b., c. and d. of section 36 of P.L.1993, c.139 (C.58:10B-13), and paragraphs (1) and (10) of this subsection, are met. The department may also require the treatment or removal of contaminated material that would pose an acute health or safety hazard in the event of failure of an engineering control;
(3) Real property on which there is soil that has not been remediated to the residential soil remediation standards, or real property on which the soil, groundwater, or surface water has been remediated to meet the required health risk standard by the use of engineering or institutional controls, may be developed or used for residential purposes, or for any other similar purpose, if (a) all areas of that real property at which a person may come into contact with soil are remediated to meet the residential soil remediation standards, (b) it is clearly demonstrated that for all areas of the real property, other than those described in subparagraph (a) above, engineering and institutional controls can be implemented and maintained on the real property sufficient to meet the health risk standard as established in subsection d. of this section, and (c) a presumptive remedy established and approved by the department pursuant to paragraph (10) of this subsection, or an alternative remedy approved by the department pursuant to paragraph (10) of this subsection, has been approved, as provided in paragraphs (1) and (10) of this subsection;
(4) Remediation shall not be required beyond the regional natural background levels for any particular contaminant. The department shall develop regulations that set forth a process to identify background levels of contaminants for a particular region. For the purpose of this paragraph "regional natural background levels" means the concentration of a contaminant consistently present in the environment of the region of the site and which has not been influenced by localized human activities;
(5) Remediation shall not be required of the owner or operator of real property for contamination coming onto the site from another property owned and operated by another person, unless the owner or operator is the person who is liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.);
(6) Groundwater that is contaminated shall not be required to be remediated to a level or concentration for any particular contaminant lower than the level or concentration that is migrating onto the property from another property owned and operated by another person;
(7) The technical performance, effectiveness and reliability of the proposed remedial action in attaining and maintaining compliance with applicable remediation standards and required health risk standards shall be considered. In reviewing a proposed remedial action, the department or the licensed site remediation professional shall also consider the ability of the owner or operator to implement the proposed remedial action within a reasonable time frame without jeopardizing public health, safety or the environment;
(8) The use of a remedial action for soil contamination that is determined by the department to be effective in its guidance document created pursuant to section 38 of P.L.1993, c.139 (C.58:10B-14), is presumed to be an appropriate remedial action if it is to be implemented on a site in the manner described by the department in the guidance document and applicable regulations and if all of the conditions for remedy selection provided for in this section are met. The burden to prove compliance with the criteria in the guidance document is with the person responsible for conducting the remediation;
(9) (Deleted by amendment, P.L.1997, c.278);
(10) The department shall, by rule or regulation, establish presumptive remedies, use of which shall be required on any site or area of concern to be used for residential purposes, as a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), as a public school or private school as defined in N.J.S.18A:1-1, or as a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.). The department may also issue guidelines that provide for presumptive remedies that may be required as provided in paragraph (1) of this subsection, on a site to be used for residential purposes, as a child care center, or as a public school, private school or charter school. The presumptive remedies shall be based on the historic use of the property, the nature and extent of the contamination at the site, the future use of the site and any other factors deemed relevant by the department. The department may include the use of engineering and institutional controls in the presumptive remedies authorized pursuant to this subsection. If the person responsible for conducting the remediation demonstrates to the department that the use of an unrestricted use remedial action or a presumptive remedy is impractical due to conditions at the site, or that an alternative remedy would be equally protective over time as a presumptive remedy, then an alternative remedy for the site that is protective of the public health and safety may be proposed for review and approval by the department;
(11) The department may authorize a person conducting a remediation to divide a contaminated site into one or more areas of concern. For each area of concern, a different remedial action may be selected provided the requirements of this subsection are met and the remedial action selected is consistent with the future use of the property; and
(12) The construction of single family residences, public schools, private schools, or charter schools, or child care centers shall be prohibited on a landfill that undergoes a remediation if engineering controls are required for the management of landfill gas or leachate.
The burden to demonstrate that a remedial action is protective of public health, safety and the environment, as applicable, and has been selected in conformance with the provisions of this subsection is with the person responsible for conducting the remediation.
The department may require the person responsible for conducting the remediation to supply the information required pursuant to this subsection as is necessary for the department to make a determination.
h. (1) The department shall adopt regulations which establish a procedure for a person to demonstrate that a particular parcel of land contains large quantities of historical fill material. Upon a determination by the department that large quantities of historic fill material exist on that parcel of land, there is a rebuttable presumption that the department shall not require any person to remove or treat the fill material in order to comply with applicable health risk or environmental standards. In these areas the department shall establish by regulation the requirement for engineering or institutional controls that are designed to prevent exposure of these contaminants to humans, that allow for the continued use of the property, that are less costly than removal or treatment, which maintain the health risk standards as established in subsection d. of this section, and, as applicable, are protective of the environment. The department may rebut the presumption only upon a finding by the preponderance of the evidence that the use of engineering or institutional controls would not be effective in protecting public health, safety, and the environment. The department may not adopt any rule or regulation that has the effect of shifting the burden of rebutting the presumption. For the purposes of this paragraph "historic fill material" means generally large volumes of non-indigenous material, no matter what date they were emplaced on the site, used to raise the topographic elevation of a site, which were contaminated prior to emplacement and are in no way connected with the operations at the location of emplacement and which include, but are not limited to, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, and non-hazardous solid waste. Historic fill material shall not include any material which is substantially chromate chemical production waste or any other chemical production waste or waste from processing of metal or mineral ores, residues, slags or tailings.
(2) The department shall develop recommendations for remedial actions in large areas of historic industrial contamination. These recommendations shall be designed to meet the health risk standards established in subsection d. of this section, and to be protective of the environment and shall take into account the industrial history of these sites, the extent of the contamination that may exist, the costs of remedial actions, the economic impacts of these policies, and the anticipated uses of these properties. The department shall issue a report to the Senate Environment Committee and to the Assembly Environment and Solid Waste Committee, or their successors, explaining these recommendations and making any recommendations for legislative or regulatory action.
(3) The department may not, as a condition of allowing the use of a nonresidential use soil remediation standard, or the use of institutional or engineering controls, require the owner of that real property, except as provided in section 36 of P.L.1993, c.139 (C.58:10B-13), to restrict the use of that property through the filing of a deed easement, covenant, or condition.
i. The department may not require a remedial action workplan to be prepared or implemented or engineering or institutional controls to be imposed upon any real property unless sampling performed at that real property demonstrates the existence of contamination above the applicable remediation standards.
j. Upon the approval by the department or by a licensed site remediation professional of a remedial action workplan, or similar plan that describes the extent of contamination at a site and the remedial action to be implemented to address that contamination, the department may not subsequently require a change to that workplan or similar plan in order to compel a different remediation standard due to the fact that the established remediation standards have changed; however, the department may compel a different remediation standard if the difference between the new remediation standard and the remediation standard approved in the workplan or other plan differs by an order of magnitude. The limitation to the department's authority to change a workplan or similar plan pursuant to this subsection shall only apply if the workplan or similar plan is being implemented in a reasonable timeframe, as may be indicated in the approved remedial action workplan or similar plan.
k. Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations promulgated pursuant thereto, and with section 502 of the "National Parks and Recreation Act of 1978," 16 U.S.C. s.471i; and all remediation standards and remedial actions that involve real property located in the Highlands preservation area shall be consistent with the provisions of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan adopted pursuant thereto.
l. Upon the adoption of a remediation standard for a particular contaminant in soil, groundwater, or surface water pursuant to this section, the department may amend that remediation standard only upon a finding that a new standard is necessary to maintain the health risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) or to protect the environment, as applicable. The department may not amend a public health based soil remediation standard to a level that would result in a health risk standard more protective than that provided for in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12).
m. Nothing in P.L.1993, c.139 shall be construed to restrict or in any way diminish the public participation which is otherwise provided under the provisions of the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.).
n. Notwithstanding any provision of subsection a. of section 36 of P.L.1993, c.139 (C.58:10B-13) to the contrary, the department may not require a person intending to implement a remedial action at an underground storage tank facility storing heating oil for on-site consumption at a one to four family residential dwelling to provide advance notice to a municipality prior to implementing that remedial action.
o. A person who has remediated a site pursuant to the provisions of this section, who was liable for the cleanup and removal costs of that discharge pursuant to the provisions of paragraph (1) of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who remains liable for the discharge on that site due to a possibility that a remediation standard may change, undiscovered contamination may be found, or because an engineering control was used to remediate the discharge, shall maintain with the department a current address at which that person may be contacted in the event additional remediation needs to be performed at the site. The requirement to maintain the current address shall be made part of the conditions of the permit issued pursuant to section 19 of P.L.2009, c.60 (C.58:10C-19) and the final remediation document.
(1) implement any engineering or institutional controls the department requires to prevent exposure to the contaminants, provide maintenance, as necessary, of those controls, and provide for the restriction of the use of the property by the owner in a manner that prevents exposure;
(2) with the consent of the owner of the real property, provide for the recording with the office of the county recording officer, in the county in which the property is located, a notice to inform prospective holders of an interest in the property that contamination exists on the property at a level that may statutorily restrict certain uses of or access to all or part of that property, a delineation of those restrictions, a description of all specific engineering or institutional controls at the property that exist and that shall be maintained in order to prevent exposure to contaminants remaining on the property, and the written consent to the notice by the owner of the property. The notice shall be recorded in the same manner as are deeds and other interests in real property. The department shall develop a uniform deed notice that ensures the proper filing of the deed notice. The provisions of this paragraph do not apply to restrictions on the use of surface water or groundwater;
(3) provide written notice to the governing body of each municipality in which the property is located that contaminants will exist at the property above residential use soil remediation standards or any other remediation standards and specifying the restrictions on the use of or access to all or part of that property and of the specific engineering or institutional controls at the property that exist and that shall be maintained;
(4) post signs, as required by the department, at any location at the site where access is restricted or in those areas that must be maintained in a prescribed manner, to inform persons on the property that there are restrictions on the use of that property or restrictions on access to any part of the site;
(5) maintain a list of the restrictions on site for inspection by governmental enforcement officials; and
(6) prior to commencing a remedial action, notify, in writing, the governing body of each municipality wherein the property being remediated is located. The notice shall include, but not be limited to, the commencement date for the remedial action; the name, mailing address and business telephone number of the person implementing the remedial action, or his designated representative; and a brief description of the remedial action.
b. If the owner of the real property does not consent to the recording of a notice pursuant to paragraph (2) of subsection a. of this section, the person responsible for conducting the remediation shall implement a remedial action that meets the residential soil remediation standard in the remediation of that real property.
c. Whenever engineering or institutional controls on property as provided in subsection a. of this section are no longer required, or whenever the engineering or institutional controls are changed because of the performance of subsequent remedial activities, a change in conditions at the site, or the adoption of revised remediation standards, the department shall require that the owner or operator of that property record with the office of the county recording officer a notice that the use of the property is no longer restricted or delineating the new restrictions. The person responsible for conducting the remediation shall notify, in writing, the municipality in which the property is located of the removal or change of the restrictive use conditions.
d. The owner or lessee of any real property, or any person operating a business on real property, which has been remediated to a nonresidential use soil remediation standard or on which a remedial action that includes engineering or institutional controls for soil, groundwater, or surface water has been implemented to protect the public health, safety, or the environment, as applicable, shall maintain the engineering or institutional controls as required by the department. An owner, lessee, or operator who takes any action that results in the improper alteration or removal of engineering or institutional controls or who fails to maintain the engineering or institutional controls as required by the department, shall be subject to the penalties and actions set forth in section 22 of P.L.1976, c.141 (C.58:10-23.11u) and, where applicable, shall be liable for any additional remediation and damages pursuant to the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g). The provisions of this subsection shall not apply if a notification received pursuant to subsection c. of this section authorizes all restrictions or controls to be removed from the subject property.
e. Notwithstanding the provisions of any other law, or any rule, regulation, or order adopted pursuant thereto to the contrary, whenever contamination at a property is remediated in compliance with all applicable soil, groundwater or surface water remediation standards that were in effect or approved by the department at the completion of the remediation, no person, except as otherwise provided in this section, shall be liable for the cost of any additional remediation that may be required by a subsequent adoption by the department of a more stringent remediation standard for a particular contaminant. Upon the adoption of a regulation that amends a remediation standard, or where the adoption of a regulation would change a remediation standard which was otherwise approved by the department, only a person who is liable to clean up and remove that contamination pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section, shall be liable for any additional remediation costs necessary to bring the site into compliance with the new remediation standards except that no person shall be so liable unless the difference between the new remediation standard and the level or concentration of a contaminant at the property differs by an order of magnitude. The department may compel a person who is liable for the additional remediation costs to perform additional remediation activities to meet the new remediation standard except that a person may not be compelled to perform any additional remediation activities on the site if that person can demonstrate that the existing engineering or institutional controls on the site prevent exposure to the contamination and that the site remains protective of public health, safety and the environment pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12). The burden to prove that a site remains protective is on the person liable for the additional remediation costs. A person liable for the additional remediation costs who is relying on engineering or institutional controls to make a site protective, shall comply with the provisions of subsections a., b., c. and d. of this section.
Nothing in the provisions of this subsection shall be construed to affect the authority of the department, pursuant to subsection f. of this section, to require additional remediation on real property where engineering controls were implemented.
Nothing in the provisions of this subsection shall limit the rights of a person, other than the State, or any department or agency thereof, to bring a civil action for damages, contribution, or indemnification as provided by statutory or common law.
f. Whenever the department approves or has approved, or a licensed site remediation professional implements a remedial action that includes, the use of engineering controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department may require additional remediation of that site only if the engineering controls no longer are protective of public health, safety, or the environment.
g. Whenever the department approves or has approved, or a licensed site remediation professional implements a remedial action that includes, the use of engineering or institutional controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department shall inspect that site at least once every five years in order to ensure that the engineering and institutional controls are being properly maintained and that the controls remain protective of public health and safety and of the environment.
h. A property owner of a site on which a deed notice has been recorded shall notify any person who intends to excavate on the site of the nature and location of any contamination existing on the site and of any conditions or measures necessary to prevent exposure to contaminants.
Except as provided in subsection e. of this section, a covenant not to sue shall by operation of law provide for the following, as applicable:
(1) a provision releasing the person who undertook the remediation from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, for the restoration of natural resources in connection with the discharge on the property or for any cleanup and removal costs;
(2) for a remediation that involves the use of engineering or institutional controls:
(a) a provision requiring the person, or any subsequent owner, lessee, or operator during the person's period of ownership, tenancy, or operation, to maintain those controls, conduct periodic monitoring for compliance, and submit to the department, on a biennial basis, a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety and of the environment. The certification shall state the underlying facts and shall include the results of any tests or procedures performed that support the certification; and
(b) a provision that the covenant is revoked by operation of law if the engineering or institutional controls are not being maintained or are no longer in place; and
(3) for a remediation that involves the use of engineering controls but not for any remediation that involves the use of institutional controls only, a provision barring the person or persons whom the covenant not to sue benefits, from making a claim against the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any costs or damages relating to the real property and remediation covered by the covenant not to sue. The covenant not to sue shall not bar a claim by any person against the New Jersey Spill Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation that involves only the use of institutional controls if, after a valid no further action letter has been issued, the department orders additional remediation, except that the covenant shall bar such a claim if the department ordered additional remediation in order to remove the institutional control.
b. Unless a covenant not to sue issued under this section is revoked by the department, or by operation of law, the covenant shall remain effective. The covenant not to sue shall apply to all successors in ownership of the property and to all persons who lease the property or who engage in operations on the property.
c. If a covenant not to sue is revoked, liability for any additional remediation shall not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property.
d. A covenant not to sue and the protections it affords shall not apply to any discharge that occurs subsequent to the issuance of the no further action letter which was the basis of the issuance of the covenant, nor shall a covenant not to sue and the protections it affords relieve any person of the obligations to comply in the future with laws and regulations.
e. The covenant not to sue shall be deemed to apply to any person who obtains a no further action letter as provided in subsection a. of this section. The covenant not to sue shall not provide relief from any liability, either under statutory or common law, to any person who is liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section.
f. (1) Except as provided in paragraphs (2) and (3) of this subsection, the department shall not issue covenants not to sue after the issuance of licenses to site remediation professionals pursuant to the provisions of section 12 of P.L.2009, c.60 (C.58:10C-12).
(2) The department may issue a covenant not to sue that is consistent with the provisions of this section when it issues a no further action letter for a remediation of a discharge from an unregulated heating oil tank.
(3) The department may issue a covenant not to sue as part of a settlement of litigation.
Except as provided in subsection e. of this section, a covenant not to sue shall by operation of law provide for the following, as applicable:
(1) a provision releasing the person who undertook the remediation from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, for the restoration of natural resources in connection with the discharge on the property or for any cleanup and removal costs;
(2) for a remediation that involves the use of engineering or institutional controls:
(a) a provision requiring the person, or any subsequent owner, lessee, or operator during the person's period of ownership, tenancy, or operation, to maintain those controls, conduct periodic monitoring for compliance, and submit to the department, on a biennial basis, a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety and of the environment. The certification shall state the underlying facts and shall include the results of any tests or procedures performed that support the certification; and
(b) a provision that the covenant is revoked by operation of law if the engineering or institutional controls are not being maintained or are no longer in place; and
(3) for a remediation that involves the use of engineering controls but not for any remediation that involves the use of institutional controls only, a provision barring the person or persons whom the covenant not to sue benefits, from making a claim against the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any costs or damages relating to the real property and remediation covered by the covenant not to sue. The covenant not to sue shall not bar a claim by any person against the New Jersey Spill Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation that involves only the use of institutional controls if, after a valid response action outcome has been issued, the department orders additional remediation, except that the covenant shall bar such a claim if the department ordered additional remediation in order to remove the institutional control.
b. The covenant not to sue shall apply to all successors in ownership of the property and to all persons who lease the property or who engage in operations on the property.
c. If a covenant not to sue is revoked, liability for any additional remediation shall not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property.
d. A covenant not to sue and the protections it affords shall not apply to any discharge that occurs subsequent to the issuance of the response action outcome which was the basis of the issuance of the covenant, nor shall a covenant not to sue and the protections it affords relieve any person of the obligations to comply in the future with laws, rules and regulations.
e. The covenant not to sue shall be deemed to apply to any person who obtains a response action outcome as provided in subsection a. of this section. The covenant not to sue shall not provide relief from any liability, either under statutory or common law, to any person who is liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section.
(1) has not been issued a directive to remove or arrange for the removal of the discharge pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f);
(2) has not been assessed a civil penalty, a civil administrative penalty, or is not the subject of an action pursuant to the provisions of section 22 of P.L.1976, c.141 (C.58:10-23.11u);
(3) has not entered into an administrative consent order to clean up and remove the discharge; and
(4) has not been ordered by a court to clean up and remove the discharge, shall not be subject to a monetary penalty for the failure to report the discharge or for any civil violation of P.L.1976, c.141 (C.58:10-23.11 et seq.) or P.L.1977, c.74 (C.58:10A-1 et seq.) that resulted in the discharge if the person notifies the department of the discharge and enters into an administrative consent order with the department to remediate the discharge in accordance with the provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), or any rules or regulations adopted pursuant thereto, within one year of the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.). Any person who notifies the department of the discharge pursuant to this section shall be liable for all cleanup and removal costs as provided in section 8 of P.L.1976, c.141 (C.58:10-23.11g).
b. Notwithstanding the provisions of subsection a. of this subsection, any person who enters into an administrative consent order pursuant to this section and fails to remediate the discharge in accordance with the administrative consent order, shall be subject to all penalties for violations that occurred before the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.) as well as any penalties for subsequent violations.
c. The provisions of this section shall not apply to violations of a permit issued pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.).
d. Any documents or information provided to the department pursuant to this section may not be used in a criminal investigation or criminal prosecution against the person providing the information or documents for those violations that occurred before the effective date of P.L.1993, c.139 as long as the person remediates the discharge in conformance with the administrative consent order entered into pursuant to subsection a. of this section.
(2) Such relief may include, singly or in combination:
(a) A temporary or permanent injunction;
(b) Assessment of the person undertaking the remediation for costs associated with any disruption in operations on the property;
(c) Assessment of the person undertaking the remediation for any costs to return the property to its condition before the commencement of the remediation;
(d) A requirement that the person undertaking the remediation indemnify the owner of the property for any damages, penalties or liabilities resulting from the remediation;
(e) A requirement that the person undertaking the remediation indemnify the owner of the property for any liability resulting from the entry of persons onto the property to perform the remediation.
b. The court shall promptly issue any access order sought pursuant to this section upon a showing that (1) a reasonable possibility exists that contamination from another site has migrated onto the owner's property, or (2) access to the property is reasonable and necessary to remediate contamination. The presence of an applicable department oversight document or a remediation obligation pursuant to law involving the property for which access is sought shall constitute prima facie evidence sufficient to support the issuance of an order.
Unless the court otherwise orders for notice and for good cause shown, an action for an access order shall not be joined with non-germane issues against the owner of the property for which access is sought or other person who may be liable for the contamination. Non-germane issues shall include, but not be limited to, issues concerning contribution, treble damages, or other damages involving either the contamination or the remediation.
The court may impose reasonable conditions as part of the access order, including without limitation, that the person undertaking the remediation take all reasonable measures to minimize the disruption to the property and the activities conducted there and return the property to its condition prior to the commencement of remediation.
c. The department may not impose or seek to impose any civil or civil administrative penalties upon any person for failure to perform a remediation on property not owned by that person within the time schedule required by regulation on property not owned by that person if (1) the failure to perform the remediation was the result of an inability of that person to enter upon real or personal property owned by another person, and (2) the person took all appropriate action pursuant to this section to obtain access to the property.
d. Nothing herein shall be construed as limiting the rights of the owner of the property against which the access order is issued to initiate a civil action to seek any damages available under law.
e. Nothing herein shall be construed as limiting the rights of the person conducting the remediation from initiating any subsequent civil action against the owner of the property upon which access was ordered.
b. Within 60 days of the effective date of P.L.1993, c.139, the department shall develop guidelines that establish a procedure through which a person conducting a remediation of a contaminated site may dispute a department decision concerning the remediation. Those guidelines shall include provisions for an expedited review procedure under which the commissioner, or his designee, shall issue a decision on the dispute within 21 calendar days of the date on which the request for that review was received.
(2) For purposes of determining whether a civil action subject to the limitations periods specified in paragraph (1) of this subsection has been commenced within time, no cause of action shall be deemed to have accrued prior to January 1, 2002 or until the contaminated site is remediated or the sanitary landfill has been properly closed, whichever is later.
b. (1) Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action concerning the payment of compensation for damage to, or loss of, natural resources due to the discharge of a hazardous substance, commenced by the State pursuant to the State's environmental laws, shall be commenced within five years and six months next after the cause of action shall have accrued.
(2) For purposes of determining whether a civil action subject to the limitations periods specified in paragraph (1) of this subsection has been commenced within time, no cause of action shall be deemed to have accrued prior to January 1, 2002 or until the completion of the remedial action for the entire contaminated site or the entire sanitary landfill facility, whichever is later.
c. As used in this section:
"State's environmental laws" means the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.), the "Sanitary Landfill Facility Closure and Contingency Fund Act," P.L.1981, c.306 (C.13:1E-100 et seq.), the "Regional Low-Level Radioactive Waste Disposal Facility Siting Act," P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property; and
"State" means the State, its political subdivisions, any office, department, division, bureau, board, commission or agency of the State or one of its political subdivisions, and any public authority or public agency, including, but not limited to, the New Jersey Transit Corporation.
d. Nothing in the amendatory provisions to this section adopted pursuant to P.L.2009, c.60 (C.58:10C-1 et al.) shall extend a limitations period that has expired prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.).
The department may, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing a fee schedule, as necessary, reflecting the actual costs associated with the review of the interim response action and any implementation thereof.
b. (Deleted by amendment, P.L.2009, c.60)
c. (1) Moneys in the fund shall be used by the Department of Environmental Protection to remediate, or contract for the remediation of, any real property for which a person was required to establish a remediation funding source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) and where that person fails to conduct or properly conduct that remediation.
(2) Moneys in the fund may be disbursed by the department as technical assistance grants to nonprofit organizations to evaluate remediation methods and monitor site conditions at specific sites of public concern in the local community in accordance with rules and regulations adopted by the department.
d. Any moneys expended by the department from the fund pursuant to this section shall constitute a debt of (1) the person required to establish the remediation funding source who fails to conduct or properly conduct a remediation and funds are expended pursuant to subsection c. of this section, and (2) against the discharger. The debt shall constitute a lien on all property owned by the person required to establish the remediation funding source and against the discharger to the same extent and in the same manner as provided for liens in subsection f. of section 7 of P.L.1976, c.141 (C.58:10-23.11f).
e. Whenever the department expends moneys from the fund for a remediation, it shall have a cause of action to recover from the person required to establish the remediation funding source or from any other person liable for the discharge pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g) triple the amount of moneys expended for the remediation.
f. Moneys in the fund may be appropriated to pay for the costs to administer the fund except that those appropriations may not exceed the amount of moneys deposited into the fund earned from the investment of moneys in the fund.
b. Upon completion of an investigation of an aquifer by the department and upon the department's determination of the extent of contamination of an aquifer, a person performing a remediation may rely upon that information for that person's submission of information to the department in the performance of a remediation.
c. The entire cost of the investigation required pursuant to this section shall be borne by the department from appropriations made to it by the Legislature specifically for this purpose. The department may not fund any part of this investigation by the imposition of a fee or charge on any person performing a remediation or upon any person who is in need of a permit or approval from the department.
d. Nothing in this section shall be construed to require or obligate the department to reclassify the groundwater of any aquifer.
e. Any information concerning the contamination of an aquifer that is submitted to the department in digital form by a person performing a remediation, shall be entered into the geographical information system maintained by the department and shall be made available to the public within 90 days of the receipt of the information by the department.
b. Upon completion of an investigation of an area of historic fill by the department and upon the department's determination of the location of historic fill in an area, a person performing a remediation may rely upon that information for that person's performance of a remediation and selection of a remedial action pursuant to subsection h. of section 35 of P.L.1993, c.139 (C.58:10B-12).
c. The entire cost of investigation required pursuant to this section shall be borne by the department from appropriations made to it by the Legislature specifically for this purpose. The department may not fund any part of this investigation by the imposition of a fee or charge on any person performing a remediation or upon any person who is in need of a permit or approval from the department.
The Office of State Planning shall provide staff to implement the functions and duties of the task force. The public members of the task force shall serve without compensation but may be reimbursed for actual expenses in the performance of their duties. The Governor shall select the chairperson of the task force.
b. The task force shall prepare and update an inventory of brownfield sites in the State. In preparing the inventory, priority shall be given to those areas of the State that receive assistance from the Urban Coordinating Council. To the extent practicable, the inventory shall include an assessment of the contaminants known or suspected to have been discharged or that are currently stored on the site, the extent of any remediation performed on the site, the site's proximity to transportation networks, and the availability of infrastructure to support the redevelopment of the site. The information gathered for the inventory shall, to the extent practicable, be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, by making this information available on the system and by making copies of any maps and data available to the public. The department may charge a reasonable fee for the reproduction of maps and data which fee shall reflect the cost of their reproduction.
c. In addition to its functions pursuant to subsection b. of this section, the task force shall:
(1) coordinate State policy on brownfields redevelopment, including incentives, regulatory programs, provision of infrastructure, and redevelopment planning assistance to local governments;
(2) use the inventory to prioritize sites based on their immediate economic development potential;
(3) prepare a plan of action to return these sites to productive economic use on an expedited basis;
(4) actively market sites on the inventory to prospective developers;
(5) use the inventory to provide a targeted environmental assessment of the sites, or of areas containing several brownfield sites, by the Department of Environmental Protection;
(6) consult with the Pinelands Commission concerning the remediation and redevelopment of brownfield sites located in the pinelands area as designated pursuant to section 10 of P.L.1979, c.111 (C.13:18A-11);
(7) evaluate the performance of current public incentives in encouraging the remediation and redevelopment of brownfields; and
(8) make recommendations to the Governor and the Legislature on means to better promote the redevelopment of brownfields, including the provision of necessary public infrastructure and methods to attract private investment in redevelopment.
d. As used in this section, "brownfield" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.
b. The inventory of brownfield sites shall include a list of known brownfield sites in the State, and at least the following information for each site:
(1) the street address, lot and block number, municipality and county;
(2) the size of the site;
(3) the last known municipal zoning classification for the site;
(4) the name and address of the owner of record of the site;
(5) an assessment of the contaminants known or suspected by the Department of Environmental Protection to have been discharged at the site;
(6) the extent and status of any remediation known by the Department of Environmental Protection to have been performed on the site; and
(7) the planning area designation and any center designation as shown on the State Plan Policy Map prepared by the State Planning Commission pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.).
c. As used in this section, "brownfield site" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or is suspected to have been, a discharge of a contaminant and "New Jersey Brownfields Site Mart" means an interactive database accessible on the Internet that provides information to developers, property owners, and State and local planners and officials, about brownfield sites in order to facilitate the sale and redevelopment of those properties.
(1) Prepare materials for dissemination to the public that explain the environmental and health risks associated with site remediations in general and which are designed to assist local governments and the public in assessing the risks associated with particular site remediation projects;
(2) Serve as an informational resource for county improvement authorities who are involved in remediating and redeveloping contaminated redevelopment areas and for municipalities and residents of this State who may be impacted by the remediation or redevelopment of contaminated real property regardless of who is undertaking the remediation or redevelopment;
(3) Work with residents and municipalities to form neighborhood informational groups whose purpose is to research, understand and disseminate information in neighborhoods concerning the public health and environmental risks associated with site remediations and redevelopment, as well as the economic benefits to be gained; and
(4) Make recommendations to the Legislature and the Governor in order to improve the public understanding, perception and risk associated with site remediations in the State.
b. Notice required pursuant to this section shall not be required when the remediation of a contaminated site is caused by a leaking residential underground storage tank used to store heating oil for on-site consumption in a one to four family residential building or an emergency response action.
b. Within six months after the date of enactment of this act, the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations setting forth the notice requirements pursuant to subsection a. of this section. The rules and regulations to be adopted by the department pursuant to this section shall require any person who is responsible for conducting a remediation of a contaminated site to provide written notification to any local property owners and tenants who reside within 200 feet of the contaminated site. The notification shall summarize site conditions and provide information about actions being taken to remediate the site. The department may require written notification or the posting of a sign visible to the public which shall be located on the boundaries of the contaminated site, or both.
c. A person responsible for conducting a remediation shall respond to any written or email inquiries from the public regarding the status of the remediation that the person receives, or that the department receives and forwards to the person responsible for conducting the remediation, by providing either: (1) information or documents that are responsive to the public inquiry; or (2) a written summary status report for the remediation, which shall be made in a form and manner as prescribed by the department pursuant to rules and regulations. A person responsible for conducting a remediation may designate a licensed site remediation professional to respond to public inquiries pursuant to this subsection.
"Local health agency" means a "local health agency" as defined in section 3 of P.L.1966, c.36 (C.26:2F-3).
"Oversight document" means any document the Department of Environmental Protection or a court issues to define the role of a person participating in the remediation of a contaminated site or is of concern, and may include, without limitation, an administrative order, administrative consent order, court order, memorandum of understanding, memorandum of agreement, or remediation agreement.
"Person who is responsible for conducting a remediation" means any person who executes or is otherwise subject to an oversight document.
"Site health and safety plan" means a plan designed to protect the health and safety of persons working on a contaminated site and required pursuant to the rules and regulations establishing the technical requirements for site remediation adopted pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.).
"Charter school" means a school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.).
"Contamination" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).
"Licensed site remediation professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the Department of Environmental Protection pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12).
"School" means any public or private school as defined in N.J.S.18A:1-1.
"School property" means any area inside and outside of the school buildings controlled, managed, leased, or owned by the school or school district.
"Staff member" means an employee of a school or school district, including administrators, teachers, and other persons regularly employed by a school or school district.
b. The local school board, the board of trustees of a charter school, or the principal or chief administrator of a private school, as appropriate, may provide the notice required by subsection a. of this section by: (1) written notice sent home with the student and provided to the staff member; (2) telephone call; (3) direct contact; or (4) electronic mail.
c. The local school board, the board of trustees of a charter school, or the principal or chief administrator of a private school, as appropriate, shall post a copy of the notice required pursuant to subsection a. of this section in a conspicuous location near the site of the soil contamination to notify any other users of the school grounds of the existence of the contamination.
(1) that a brownfield development area includes at least two brownfield sites within a contiguous area;
(2) that the boundaries are consistent with the boundaries of a distinct neighborhood;
(3) broad community support for the establishment of a brownfield development area; and
(4) that the establishment of a brownfield development area will result in a benefit to the public health and safety, and the environment.
A brownfield development area shall be designated by the department, in writing, upon application by a person proposing to remediate a site or sites within the area, or upon the department's initiative.
The guidelines, and any subsequent revisions thereto, and a list of the brownfield development areas, and any subsequent revisions thereto, shall be published in the New Jersey Register. The adoption of the guidelines or of the revisions thereto, shall not be subject to the requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
b. Prior to March 1 of each year, the Department of Environmental Protection shall prepare and transmit to the members of the Senate Environment Committee and the Assembly Environment and Solid Waste Committee, or their successors, an annual report that provides a description of the projects for which grants have been awarded, the grant recipients for each project, the owner of the property being remediated, the amount of each grant, and the location of the property being remediated.
"Contamination" or "contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).
"Developer" means any person that enters or proposes to enter into a redevelopment agreement with the State pursuant to the provisions of section 35 of P.L.1997, c.278 (C.58:10B-27).
"Director" means the Director of the Division of Taxation in the Department of the Treasury.
"Licensed site remediation professional" means an individual who is licensed by the Site Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the Department of Environmental Protection pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12).
"No further action letter" means a written determination by the Department of Environmental Protection that based upon an evaluation of the historical use of a particular site, or of an area of concern or areas of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no discharged contaminants present at the site, at the area of concern or areas of concern, at any other site to which a discharge originating at the site has migrated, or that any discharged contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations.
"Project" or "redevelopment project" means a specific work or improvement, including lands, buildings, improvements, real and personal property or any interest therein, including lands under water, riparian rights, space rights and air rights, acquired, owned, developed or redeveloped, constructed, reconstructed, rehabilitated or improved, undertaken by a developer within an area of land whereon a contaminated site is located, under a redevelopment agreement with the State pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27).
"Redevelopment agreement" means an agreement between the State and a developer under which the developer agrees to perform any work or undertaking necessary for the remediation of the contaminated site located at the site of the redevelopment project, and for the clearance, development or redevelopment, construction or rehabilitation of any structure or improvement of commercial, industrial or public structures or improvements within an area of land whereon a contaminated site is located pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27), and the State agrees that the developer shall be eligible for the reimbursement of up to 75% of the costs of remediation of the contaminated site from the fund established pursuant to section 38 of P.L.1997, c.278 (C.58:10B-30) as authorized pursuant to section 36 of P.L.1997, c.278 (C.58:10B-28).
"Remediation" or "remediate" means all necessary actions to investigate and clean up or respond to any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1).
"Remediation costs" means all reasonable costs associated with the remediation of a contaminated site except that "remediation costs" shall not include any costs incurred in financing the remediation.
"Response action outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained.
The decision whether or not to enter into a redevelopment agreement is solely within the discretion of the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission and the State Treasurer and both must agree to enter into the redevelopment agreement. Nothing in P.L.1997, c.278 (C.58:10B-1.1 et al.) may be construed to compel the Secretary and the State Treasurer to enter into any redevelopment agreement.
The Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission, in consultation with the State Treasurer shall negotiate the terms and conditions of any redevelopment agreement on behalf of the State. The redevelopment agreement shall specify the amount of the reimbursement to be awarded the developer, the frequency of payments and the length of time in which that reimbursement shall be granted. In no event shall the amount of the reimbursement, when taken together with the property tax exemption received pursuant to the "Environmental Opportunity Zone Act," P.L.1995, c.413 (C.54:4-3.151), less any in lieu of tax payments made pursuant to that act, or any other State, local, or federal tax incentive or grant to remediate a site, exceed 75%of the total cost of the remediation.
The Secretary and the State Treasurer may only enter into a redevelopment agreement if they make a finding that the State tax revenues to be realized from the redevelopment project will be in excess of the amount necessary to reimburse the developer. This finding may be made by an estimation based upon the professional judgment of the Secretary and the State Treasurer.
The percentage of each payment to be made to the developer pursuant to the redevelopment agreement shall be conditioned on the occupancy rate of the residential dwelling units, buildings, or other work areas located on the property. The redevelopment agreement shall provide for the payments made in order to reimburse the developer to be in the same percentages as the occupancy rate at the site except that upon the attainment of a 90% occupancy rate, the developer shall be entitled to the entire amount of each payment toward the reimbursement as set forth in the redevelopment agreement. If the redevelopment of the property is performed in phases, then the redevelopment agreement shall provide for the payments to reimburse the developer to commence prior to the completion of the redevelopment at the entire site. The redevelopment agreement shall provide that payments to reimburse the developer be in the same percentages as the occupancy rate of that portion of the site for which the developer has received a no further action letter, and on which new residential construction is completed or a place of business is located, that has generated new tax revenues. The redevelopment agreement shall provide for the frequency of the director's finding of the occupancy rate during the payment schedule. If a redevelopment project is completed in phases, where a portion of the property subject to the redevelopment agreement is generating new tax revenues, then the redevelopment agreement shall provide for the frequency of the director's finding of the occupancy rate for each phase of the redevelopment.
b. In deciding whether or not to enter into a redevelopment agreement and in negotiating a redevelopment agreement with a developer, the Secretary shall consider the following factors:
(1) the economic feasibility of the redevelopment project;
(2) the extent of economic and related social distress in the municipality and the area to be affected by the redevelopment project;
(3) the degree to which the redevelopment project will advance State, regional and local development and planning strategies;
(4) the likelihood that the redevelopment project shall, upon completion, be capable of generating new tax revenue in an amount in excess of the amount necessary to reimburse the developer for the remediation costs incurred as provided in the redevelopment agreement;
(5) the relationship of the redevelopment project to a comprehensive local development strategy, including other major projects undertaken within the municipality;
(6) the need of the redevelopment agreement to the viability of the redevelopment project; and
(7) the degree to which the redevelopment project enhances and promotes job creation and economic development.
b. As used in this section, "closure and remediation costs" means all reasonable costs associated with the closure and remediation of the Avon Sanitary Landfill, the Kingsland Park Sanitary Landfill, the Lyndhurst Sanitary Landfill, and the Rutherford Sanitary Landfill, except that "closure and remediation costs" shall not include any costs incurred in financing the remediation and closure of a particular landfill; and "closure" means all activities associated with the design, purchase, construction or maintenance of all measures required by the Department of Environmental Protection, pursuant to law, in order to prevent, minimize or monitor pollution or health hazards resulting from the Avon Sanitary Landfill, the Kingsland Park Sanitary Landfill, the Lyndhurst Sanitary Landfill, and the Rutherford Sanitary Landfill subsequent to the termination of operations at these landfills, or at any portion thereof, including, but not necessarily limited to, the placement of final earthen or vegetative cover, the installation of methane gas vents or monitors and leachate monitoring wells or collection systems, and long-term operations and maintenance, at the site of these landfills.
(1) the remediation that has not yet been performed on the subject real property is necessary to ensure that the public health and safety and the environment are protected; and
(2) (a) the cost or extent of remediation was unanticipated at the time the redevelopment project was commenced; (b) changes to the rules and regulations governing site remediation were adopted after the redevelopment project was commenced; (c) principles of fairness and consistency indicate that the reimbursement of remediation costs provided by P.L.1997, c.278 should be made available to the developer who agreed to remediate and redevelop a brownfield prior to the enactment of P.L.1997, c.278; (d) an estimate of the cost of the remediation to be performed subsequent to entry into the redevelopment agreement as approved by the Department of Environmental Protection exceeds $10 million; (e) the subject real property is situated within a Planning Area 1 as designated in the State Development and Redevelopment Plan; and (f) a phase of the redevelopment project has not been commenced.
b. A developer that enters into a redevelopment agreement pursuant to this section shall be eligible for reimbursement of remediation costs pursuant to sections 36 and 37 of P.L.1997, c.278 (C.58:10B-28 and 58:10B-29), provided that:
(1) in estimating the amount of State taxes that are anticipated to be derived from a redevelopment project the director shall only consider tax revenues generated subsequent to the date of the redevelopment agreement from a phase of the redevelopment project that has not generated tax revenues prior to January 1, 2006; and
(2) a developer has entered into an oversight document with the Commissioner of Environmental Protection for the remediation of a contaminated site located on the site of the redevelopment project and the developer is in compliance with the oversight document.
c. Nothing in this section shall require that a no further action letter be obtained by a developer for remediation of groundwater beneath the subject real property prior to reimbursement of the remediation costs, provided that the developer has completed any capital construction or infrastructure required for the remediation of groundwater on the site.
b. To be eligible for reimbursement of the costs of remediation, a developer shall submit an application, in writing, to the director for review and certification of the reimbursement. The director shall review the request for the reimbursement upon receipt of an application therefor, and shall approve or deny the application for certification on a timely basis. The director shall also make a finding of the occupancy rate of the property subject to the redevelopment agreement in the frequency set forth in the redevelopment agreement as provided in section 35 of P.L.1997, c.278 (C.58:10B-27).
The director shall certify a developer to be eligible for the reimbursement if the director finds that:
(1) residential construction is complete, or a place of business is located, in the area subject to the redevelopment agreement that has generated new tax revenues;
(2) the developer had (i) entered into an oversight document, with the Commissioner of Environmental Protection, after the developer entered into the redevelopment agreement, for the remediation of contamination located on the site of the redevelopment project pursuant to section 37 of P.L.1997, c.278 (C.58:10B-29) and the developer is in compliance with the oversight document, or (ii) complied with the requirements set forth in subsection b. of section 30 of P.L.2009, c.60 (C.58:10B-1.3); and
(3) the costs of the remediation were actually and reasonably incurred. In making this finding the director may consult with the Department of Environmental Protection.
c. When filing an application for certification for a reimbursement pursuant to this section, the developer shall submit to the director a certification of the total remediation costs incurred by the developer for the remediation of the subject property located at the site of the redevelopment project as provided in the redevelopment agreement, information concerning the occupancy rate of the buildings or other work areas located on the property subject to the redevelopment agreement, and such other information as the director deems necessary in order to make the certifications and findings pursuant to this section.
b. Under the oversight document, the developer shall agree to perform and complete any remediation activity as may be required by the Department of Environmental Protection to ensure the remediation is conducted pursuant to the regulations adopted by the Department of Environmental Protection pursuant to P.L.1993, c.139 (C.58:10B-1 et al.).
c. After the developer has entered into an oversight document with the Commissioner of Environmental Protection, or after the developer has notified the Department of Environmental Protection of the name and license information of the licensed site remediation professional who has been retained to perform the remediation as required pursuant to subsection b. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), the commissioner shall submit a copy thereof to the developer, the clerk of the municipality in which the subject property is located, the Division of Business Assistance, Marketing and International Trade in the New Jersey Economic Development Authority, and the director.
b. The fund shall be credited with an amount from the General Fund, determined sufficient by the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission, to provide the negotiated reimbursement to the developer. Moneys credited to the fund shall be an amount that equals the percent of the remediation costs expected to be reimbursed pursuant to the redevelopment agreement. In estimating the amount of new State taxes that is anticipated to be derived from a redevelopment project pursuant to section 35 of P.L.1997, c.278 (C.58:10B-27), the Chief Executive Officer and Secretary of the Commerce and Economic Growth Commission and the State Treasurer shall consider taxes from the following: the Corporation Business Tax Act (1945), P.L.1945, c.162 (C.54:10A-1 et seq.), "The Savings Institution Tax Act," P.L.1973, c.31 (C.54:10D-1 et seq.), the tax imposed on marine insurance companies pursuant to R.S.54:16-1 et seq., the tax imposed on fire insurance companies pursuant to R.S.54:17-4 et al., the tax imposed on insurers generally, pursuant to P.L.1945, c.132 (C.54:18A-1 et seq.), the public utility franchise tax, public utilities gross receipts tax and public utility excise tax imposed pursuant to P.L.1940, c.4, and P.L.1940, c.5 (C.54:30A-16 et seq. and C.54:30A-49 et seq.), the tax derived from net profits from business, a distributive share of partnership income, or a prorata share of S corporation income under the "New Jersey Gross Income Tax Act," N.J.S.54A:1-1 et seq., the tax derived from a business at the site of a redevelopment project that is required to collect the tax pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.), the tax imposed pursuant to P.L.1966, c.30 (C.54:32B-1 et seq.) from the purchase of materials used for the remediation, the construction of new structures, or the construction of new residences at the site of a redevelopment project, or the portion of the fee imposed pursuant to section 3 of P.L.1968, c.49 (C.46:15-7) derived from the sale of real property at the site of the redevelopment project and paid to the State Treasurer for use by the State, that is not credited to the "Shore Protection Fund" or the "Neighborhood Preservation Nonlapsing Revolving Fund" pursuant to section 4 of P.L.1968, c.49 (C.46:15-8). For the purpose of computing the sales and use tax on the purchase of materials used for the remediation, the construction of new structures, or the construction of new residences at the site of a redevelopment project, it shall be presumed by the Director of the Division of Taxation, in lieu of an exact accounting from the developer, suppliers, contractors, subcontractors and other parties connected with the project, that the tax equals one percent of the developer's contract price for remediation and improvements or such other percentage, not to exceed three percent, that may be agreed to by the director upon the presentation of clear and convincing evidence that the tax on materials is greater than one percent of the contract price for the remediation and improvements.
b. A developer shall submit to the director updated remediation costs actually incurred by the developer for the remediation of the contaminated property located at the site of the redevelopment project as provided in the redevelopment agreement. The reimbursement authorized pursuant to this section shall continue until such time as the aggregate dollar amount of the agreed upon reimbursement. To remain entitled to the reimbursement authorized pursuant to this section, the developer shall perform and complete all remediation activities as may be required pursuant to the oversight document entered into with the Commissioner of Environmental Protection pursuant to section 37 of P.L.1997, c.278 (C.58:10B-29) or as may be required by the licensed site remediation professional in order to issue a response action outcome for the site. The Department of Environmental Protection may review the remediation costs incurred by the developer to determine if they are reasonable.
Reimbursable remediation costs shall include costs that are incurred in preparing the area of land whereon the contaminated site is located for remediation and may include costs of dynamic compaction of soil necessary for the remediation.
"Area of concern" means any location where contaminants are or were known or suspected to have been discharged, generated, manufactured, refined, transported, stored, handled, treated, or disposed, or where contaminants have or may have migrated.
"Board" means the Site Remediation Professional Licensing Board established pursuant to section 3 of P.L.2009, c.60 (C.58:10C-3).
"Certified subsurface evaluator" means a person certified to perform services at the site of an unregulated heating oil tank pursuant to P.L.1991, c.123 (C.58:10A-24.1 et seq.) as a subsurface evaluator.
"Contamination" or "contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3).
"Department" means the Department of Environmental Protection.
"Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State.
"Engineering controls" means any mechanism to contain or stabilize contamination or ensure the effectiveness of a remedial action. Engineering controls may include, without limitation, caps, covers, dikes, trenches, leachate collection systems, signs, fences and physical access controls.
"Environmental crime" means any criminal violation of one of the following State laws: R.S.12:5-1 et seq.; P.L.1975, c.232 (C.13:1D-29 et al.); the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.); section 17 of P.L.1975, c.326 (C.13:1E-26); the "Comprehensive Regulated Medical Waste Management Act," sections 1 through 25 of P.L.1989, c.34 (C.13:1E-48.1 et seq.); P.L.1989, c.151 (C.13:1E-99.21a et al.); the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.11 et al.); the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.); the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.); the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et al.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.); the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et al.); P.L.1947, c.377 (C.58:4A-5 et seq.); the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); P.L.1986, c.102 (C.58:10A-21 et seq.); the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et al.); the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.).
"Feasibility study" means a study to develop and evaluate options for remedial action using data gathered during the remedial investigation to develop the objectives of the remedial action, and to develop possible remedial action alternatives, to evaluate those alternatives and create a list of feasible alternatives, and to analyze the engineering, scientific, institutional, human health, environmental, and cost of each selected alternative.
"Hazardous substance" means the "environmental hazardous substances" on the environmental hazardous substance list adopted by the department pursuant to section 4 of P.L.1983, c.315 (C.34:5A-4); such elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 311 of the Federal Water Pollution Control Act Amendments of 1972, Pub. L.92-500, as amended by the Clean Water Act of 1977, Pub. L.95-217 (33 U.S.C. s.1251 et seq.); the list of toxic pollutants designated by Congress or the federal Environmental Protection Agency pursuant to section 307 of that act; and the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 101 of the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," Pub. L.96-510 (42 U.S.C. s.9601 et seq.); provided, however, that sewage and sewage sludge shall not be considered as hazardous substances for the purposes of P.L.1976, c.141 (C.58:10-23.11 et seq.).
"Immediate environmental concern" means: (1) confirmed contamination in a well used for potable purposes at concentrations above the ground water remediation standards; (2) confirmed contamination that has migrated into a structure or a confined space producing a toxic or harmful atmosphere resulting in an unacceptable human health exposure, or producing an oxygen-deficient atmosphere, or resulting in demonstrated physical damage to essential underground services; (3) confirmed contamination at the site of a nature that either dermal contact, ingestion, or inhalation of the contamination could result in an acute human health exposure; or (4) any other confirmed contamination that poses an immediate threat to the environment or to the public health and safety.
"Institutional controls" means a mechanism used to limit human activities at or near a contaminated site, or to ensure the effectiveness of the remedial action over time, when contaminants remain at a contaminated site in levels or concentrations above the applicable remediation standard that would allow unrestricted use of that property. Institutional controls may include, without limitation, structure, land, and natural resource use restrictions, well restriction areas, and deed notices.
"Licensed site remediation professional" means an individual who is licensed by the board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7) or the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12).
"Limited restricted use remedial action" means any remedial action that requires the continued use of institutional controls but does not require the use of an engineering control.
"Person" means an individual, public or private corporation, company, association, society, firm, partnership, joint stock company, the State, and any of its political subdivisions or agents.
"Person responsible for conducting the remediation" means (1) any person who executes or is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or operator of an industrial establishment subject to P.L.1983, c.330 (C.13:1K-6 et al.), for the remediation of a discharge, (3) the owner or operator of an underground storage tank subject to P.L.1986, c.102 (C.58:10A-21 et seq.), for the remediation of a discharge, (4) any other person who discharges a hazardous substance or is in any way responsible for a hazardous substance, pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated site, or (5) any other person who is remediating a site.
"Preliminary assessment" means the first phase in the process of identifying areas of concern and determining whether contaminants are or were present at a site or have migrated or are migrating from a site, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any contaminant is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of the public records.
"Receptor evaluation" means an evaluation of the potential impact of contamination on humans and environmentally sensitive natural resources.
"Remedial action" means those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the applicable health risk or environmental standards.
"Remedial action workplan" means a plan for the remedial action to be undertaken at a site, or at any area to which a discharge originating at a site is migrating or has migrated; a description of the remedial action to be used to remediate a site; a time schedule and cost estimate of the implementation of the remedial action; and any other information the department deems necessary.
"Remedial investigation" means a process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site and the problems presented by a discharge, and may include data collected, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions if necessary.
"Remediation" or "remediate" means all actions to investigate, clean up, or respond to any known, suspected, or threatened discharge of contaminants, including the preliminary assessment, site investigation, remedial investigation, and remedial action, or any portion thereof, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources.
"Remediation standards" means the combination of numeric standards that establish a level or concentration, and narrative standards to which contaminants must be treated, removed, or otherwise cleaned for soil, groundwater, or surface water, as provided by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12) in order to meet the health risk or environmental standards.
"Response action outcome" means a written determination by a licensed site remediation professional that the contaminated site was remediated in accordance with all applicable statutes and regulations, and based upon an evaluation of the historical use of the site, or of any area of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no contaminants present at the site, or at any area of concern, at any other site to which a discharge originating at the site has migrated, or that any contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation regulations, and all applicable permits and authorizations have been obtained.
"Restricted use remedial action" means any remedial action that requires the continued use of engineering and institutional controls in order to meet the established health risk or environmental standards.
"Retained" means hired, individually or through a firm or other person, by or on behalf of a person responsible for conducting remediation, to perform, manage, or supervise remediation or to periodically review and evaluate a remediation performed by other persons.
"Site investigation" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment.
"Small business" means a business entity that does not acquire property for development or redevelopment, and that, during the prior three tax years, employed not more than 50 full-time employees or the equivalent thereof, and qualifies as a small business concern within the meaning of the federal "Small Business Act," 15 U.S.C. s.631 et seq.
"Temporary license" means a license issued by the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12) to conduct business as a licensed site remediation professional in the State.
"Unregulated heating oil tank" means any one or combination of tanks, including appurtenant pipes, lines, fixtures, and other related equipment, used to contain an accumulation of heating oil for on-site consumption in a residential building, or those tanks with a capacity of 2,000 gallons or less used to store heating oil for on-site consumption in a nonresidential building, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10 percent or more below the ground.
"Waters" means the ocean and its estuaries to the seaward limit of the State's jurisdiction, all springs, streams and bodies of surface or groundwater, whether natural or artificial, within the boundaries of the State.
b. The board shall consist of 13 members to be selected and qualified as follows:
(1) The Commissioner of Environmental Protection, or a designee, who shall serve ex officio, and who shall be the chairperson of the board;
(2) The State Geologist, or a designee, who shall serve ex officio; and
(3) Eleven public members, residents of the State, who shall be appointed by the Governor with the advice and consent of the Senate as follows:
(a) six shall be site remediation professionals who hold a license from the board. Of the six members first appointed pursuant to this subparagraph, two shall be appointed to a term of one year, two shall be appointed to a term of two years, one shall be appointed to a term of three years, and one shall be appointed to a term of four years. Thereafter, all appointments shall be for a term of four years. The members first appointed to the board pursuant to this subparagraph shall hold a temporary site remediation professional license issued by the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12);
(b) three shall be members at the time of appointment of Statewide organizations that promote the protection of the environment and who are knowledgeable with respect to issues involving responding to discharges of hazardous substances. Of the members appointed pursuant to this subparagraph, one shall be a licensed site remediation professional. Of the three members first appointed pursuant to this subparagraph, one shall be appointed to a term of one year, one shall be appointed to a term of two years, and one shall be appointed to a term of three years. Thereafter, all appointments shall be for a term of four years;
(c) one shall be a person from the business community in the State who is knowledgeable with respect to issues involving responding to discharges of hazardous substances and whose initial appointment shall be for a term of three years. Thereafter, the appointment shall be for a term of four years; and
(d) one shall be a member of the academic community who is knowledgeable with respect to issues involving responding to discharges of hazardous substances and who shall be appointed for a term of four years.
c. Each member shall serve for the term of the appointment and until a successor shall have been appointed and qualified. Any vacancy shall be filled in the same manner as the original appointment for the unexpired term only.
d. (1) The Governor may remove a member of the board for cause, after a public hearing.
(2) The 11 public members shall serve without compensation, but may be reimbursed for necessary expenses incurred in the performance of their duties within the limits of funding made available to the board.
e. The department shall provide such staff and other persons as are required to assist the board in the performance of its functions and duties pursuant to P.L.2009, c.60 (C.58:10C-1 et al.), including administrative law judges who may conduct adjudicatory proceedings. The board shall make all final decisions in such adjudicatory proceedings.
a. To review and approve or deny applications for licensing site remediation professionals;
b. To administer and evaluate licensing examinations for site remediation professionals;
c. To issues licenses and license renewals to all qualifying site remediation professionals;
d. To establish standards and requirements for continuing education of licensed site remediation professionals;
e. To approve or offer continuing education courses;
f. To track fulfillment of continuing education requirements by licensed site remediation professionals;
g. To establish and collect fees for examinations, licenses, renewals, or any other services required for the licensing of site remediation professionals;
h. To adopt and administer standards for professional conduct for licensed site remediation professionals, as provided in sections 14 and 16 of P.L.2009, c.60 (C.58:10C-14 and C.58:10C-16);
i. To investigate complaints, impose discipline, and suspend and revoke licenses of site remediation professionals who violate the provisions of P.L.2009, c.60 (C.58:10C-1 et al.);
j. To publish and maintain the names and contact information of all site remediation professionals licensed pursuant to P.L.2009, c.60 (C.58:10C-1 et al.), and make the list available on the board's internet website;
k. To publish and maintain a list of all site remediation professionals whose license has been suspended or revoked by the board and make the list available on the board's internet website;
l. To provide public information on the licensed site remediation professional program; and
m. To maintain a record of complaints filed against licensed site remediation professionals and provide the public with information upon request.
b. The rules and regulations adopted pursuant to this section shall be sufficient to assure that any response action outcome issued by a site remediation professional licensed pursuant to P.L.2009, c.60 (C.58:10C-1 et al.) shall be consistent with all applicable laws, rules and regulations concerning the remediation of contaminated sites and shall protect public health and safety and the environment.
b. The board shall establish standards for education, training and experience that shall be required of any person who applies for a license or a license renewal. The board shall conduct examinations to certify that an applicant possesses sufficient knowledge of the State laws, rules and regulations, standards and requirements applicable to site remediation and that the applicant is qualified to obtain a license or a license renewal. The board shall also adopt standards for the professional conduct of licensed site remediation professionals pursuant to the provisions of section 16 of P.L.2009, c.60 (C.58:10C-16). The board shall require an applicant to submit references to ensure that the applicant meets the standards and requirements established for training, experience and professional conduct by licensed site remediation professionals. No person may take the licensing examination until the board determines that the applicant meets the standards for education, training and experience.
c. An application for a license shall be made in a manner and on such forms as may be prescribed by the board. The filing of an application shall be accompanied by an application fee that shall cover the costs of processing the application and developing and conducting the examinations. The board may also charge an annual license fee that shall cover the costs of the licensing program.
d. An applicant for a site remediation professional license shall demonstrate to the board that the applicant:
(1) holds a bachelor's degree or higher in natural, chemical or physical science, or an engineering degree in a discipline related to site remediation, from an accredited institution of higher education, or has been issued a temporary license to remediate discharges from underground storage tanks only pursuant to subsection d. of section 13 of P.L.2009, c.60 (C.58:10C-13) and meets the other requirements established in this subsection and in subsection f. of this section;
(2) has eight years of full-time professional experience, as described in subsection e. of this section, in the field of site remediation, of which five years shall have occurred in New Jersey and at least three years shall have occurred in New Jersey within the five years prior to submission of the application;
(3) has a minimum of 5,000 hours of relevant professional experience within the State over the five years immediately prior to submission of the application that is of a professional grade and character that indicates the applicant is competent to issue a response action outcome;
(4) has attended and completed the minimum environmental health and safety education and training provided pursuant to 29 C.F.R. Section 1910.120 no more than one year prior to submission of an application for a license pursuant to this section;
(5) has attended and completed a course approved by the department on the State's rules and regulations concerning the technical requirements for site remediation no more than three years prior to submission of the application;
(6) has not been convicted of, or pled guilty to, an environmental crime, any similar or related crime under federal or state law, or any crime involving fraud, breach of trust, theft by deception, forgery, or any crime or offense that would qualify the person for registration pursuant to section 2 of P.L.1994, c.133 (C.2C:7-2), or any other crime involving moral turpitude, or any similar or related offense under federal or state law. For the purposes of this section, a conviction or plea of guilty shall include a non vult, nolo contendere, no contest, or finding of guilt by a judge or jury; and
(7) has not had a professional license or professional certification revoked by any state licensing board or any other professional licensing agency within the previous 10 years, and has not surrendered a professional license or professional certification in response to a disciplinary investigation within the previous 10 years.
e. For the purposes of this section, "full-time professional experience" includes experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site. The board may consider the applicant's work activities, field of practice, duration of employment, and work products prepared in determining the credit to be allowed for professional experience. The board may allow applicants with relevant advanced degrees up to two years of credit for professional experience, of which one year of credit may be awarded for applicants who have earned a master's degree in a relevant field of study and up to two years of credit may be awarded for applicants who have earned a doctorate degree in a relevant field of study.
f. The board shall authorize an applicant who has been issued a temporary license pursuant to subsection d. of section 13 of P.L.2009, c.60 (C.58:10C-13), who meets all other requirements established pursuant to this section but does not hold a bachelor's degree from an accredited institution of higher education to take the licensing examination to qualify for a license pursuant to this section. An applicant who does not satisfactorily complete the examination authorized pursuant to this subsection shall not be authorized to reapply for a license.
g. No person may obtain a license unless that person meets the standards established for education, training and experience required in subsection b. of this section, satisfactorily passes the examination, and satisfies any other requirements established by the board to ensure that licensed site remediation professionals meet the requirements established pursuant to this section.
b. The board may prohibit any person whose application for an initial license or for a license renewal is denied, or whose license is revoked, from applying for a license for a period of not more than three years. The term during which reapplication is prohibited shall be established as part of the determination of the board in the proceedings concerning the denial or revocation.
b. Except as provided in subsection d. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), a person who is not a licensed site remediation professional shall not perform remediation unless the remediation is managed, supervised, or periodically reviewed and evaluated by a licensed site remediation professional.
b. An application for a temporary license or license renewal shall be accompanied by an application fee established by the department that shall cover all costs of processing the application and developing and conducting license exams. The department may also establish an annual fee that shall be charged to a person who qualifies for a temporary license that shall cover all costs of administering and enforcing the temporary license program.
c. Each temporary license issued by the department shall be issued to an individual, shall be valid only for the individual to whom it is issued and shall not be transferable. Except as provided in this subsection, each temporary license issued by the department pursuant to this section and section 13 of P.L.2009, c.60 (C.58:10C-13) shall be valid for a period not to exceed three years, unless a shorter period is specified therein, or unless suspended or revoked. All temporary site remediation professional licenses shall expire as provided in rules and regulations adopted by the board pursuant to subsection a. of section 6 of P.L.2009, c.60 (C.58:10C-6).
d. The department may deny an application for a temporary license or an application for a license renewal. The department may prohibit any person whose application for a temporary license or for a license renewal is denied from applying for a license for a period of not more than three years. The term during which reapplication is prohibited shall be established as part of the determination of the department in the proceedings concerning the denial.
b. An applicant for a temporary site remediation professional license shall demonstrate to the department that the applicant:
(1) holds a bachelor's degree or higher in natural, chemical or physical science, or an engineering degree in a discipline related to site remediation, from an accredited institution of higher education, except as provided in subsection d. of this section;
(2) has 10 years of full-time professional experience, as described in subsection c. of this section, in the field of site remediation, of which five years shall have occurred in New Jersey and at least three years shall have occurred in New Jersey immediately prior to submission of the application;
(3) has attended and completed the minimum environmental health and safety education and training provided pursuant to 29 C.F.R. Section 1910.120 no more than one year prior to submission of an application for a temporary license;
(4) has attended and completed a course approved by the department on the State's rules and regulations concerning the technical requirements for site remediation no more than three years prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.);
(5) has not been convicted of, or pled guilty to, an environmental crime, or any similar or related criminal offense under federal or state law, or any crime involving fraud, theft by deception, forgery, or any similar or related criminal offense under federal or state law; and
(6) has not had a professional license revoked by any state licensing board or any other professional licensing agency within the previous 10 years.
c. For the purposes of this section, "full-time professional experience" includes experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site. The department may consider the applicant's work activities, field of practice, duration of employment, and work products prepared in determining the credit to be allowed for professional experience. The department may allow applicants with relevant advanced degrees up to two years of credit for professional experience, of which one year of credit may be awarded for applicants who have earned a master's degree in a relevant field of study and up to two years of credit may be awarded for applicants who have earned a doctorate degree in a relevant field of study.
d. For the purposes of this section, the department may issue a temporary license to an applicant for the remediation of discharges from underground storage tanks only. For those temporary licenses issued pursuant to this subsection, the department may provide for the substitution of full-time professional experience in the field of contaminated site remediation for the holding of a bachelor's degree. An applicant who does not hold a bachelor's degree from an accredited institution of higher education shall have at least 14 years of full-time professional experience, of which at least five years shall have occurred in New Jersey immediately prior to submission of the application. The applicant shall meet all other requirements as provided in subsection b. of this section.
e. The department may issue temporary site remediation professional licenses by publishing a list of the names and identifying information of the licensees on its Internet website.
b. A licensed site remediation professional shall certify electronic submissions made to the department concerning the remediation of a contaminated site. The licensed site remediation professional shall attest that no other person is authorized or able to use any password, encryption method, or electronic signature provided to the licensed site remediation professional by the board or the department.
c. The licensed site remediation professional shall employ the following remediation requirements in providing professional services for the remediation of contaminated sites:
(1) The licensed site remediation professional shall make each decision concerning a contaminated site in order to meet the following standards:
(a) health risk and environmental standards established pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12);
(b) remediation standards adopted by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12);
(c) maximum contaminant levels for building interiors adopted by the Department of Health and Senior Services pursuant to section 1 of P.L.2007, c.1 (C.52:27D-130.4) as applicable; and
(d) any other applicable standards adopted pursuant to law.
(2) The licensed site remediation professional shall apply the following regulations:
(a) rules and regulations adopted by the Site Remediation Professional Licensing Board pursuant to section 6 of P.L.2009, c.60 (C.58:10C-6);
(b) technical standards for site remediation adopted by the department pursuant to P.L.1993, c.139 (C.58:10B-1 et al.);
(c) mandatory remediation timeframes and expedited site specific timeframes adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28);
(d) presumptive remedies adopted by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12); and
(e) any other applicable rules and regulations concerning the remediation.
(3) The licensed site remediation professional shall apply any available and appropriate technical guidelines concerning site remediation as issued by the department. The department shall provide interested parties the opportunity to participate in the development and review of technical guidelines issued for the remediation of contaminated sites.
(4) When there is no specific requirement provided by the technical standards for site remediation adopted by the department, and guidelines issued by the department are not appropriate or necessary, in the professional judgment of the licensed site remediation professional, to meet the remediation requirements listed in paragraph (1) of this subsection, the licensed site remediation professional may use the following additional guidelines to make decisions regarding a remediation, and shall set forth justification, including, if applicable, the scientific, technical, or other justification, for such use, in the relevant submittal to the department:
(a) relevant guidance from the federal Environmental Protection Agency or other states; and
(b) other relevant, applicable, and appropriate methods and practices that ensure the protection of the public health and safety, and of the environment.
d. Upon completion of the remediation, the licensed site remediation professional shall issue a response action outcome to the person responsible for conducting the remediation when, in the opinion of the licensed site remediation professional, the site has been remediated so that it is in compliance with all applicable statutes, rules and regulations protective of public health and safety and the environment. The licensed site remediation professional shall file the response action outcome with the department when it is issued to the person responsible for conducting the remediation.
b. Any person who remediates a discharge from an unregulated heating oil tank may hire a certified subsurface evaluator or a licensed site remediation professional to perform the remediation.
b. A licensed site remediation professional shall exercise reasonable care and diligence, and shall apply the knowledge and skill ordinarily exercised by licensed site remediation professionals in good standing practicing in the State at the time the services are performed.
c. A licensed site remediation professional shall not provide professional services outside the areas of professional competency, unless the licensed site remediation professional has relied upon the technical assistance of another professional whom the licensed site remediation professional has reasonably determined to be qualified by education, training, and experience. A licensed site remediation professional shall not perform services that constitute the practice of professional engineering unless the licensed site remediation professional is a professional engineer licensed in the State.
d. A licensed site remediation professional retained by a person responsible for conducting the remediation shall notify the department within 15 calendar days after being retained. In addition, a licensed site remediation professional shall notify the department within 15 calendar days after being released from responsibility for a remediation if the release occurs prior to issuance of the response action outcome for the site by the licensed site remediation professional.
e. A licensed site remediation professional and the person responsible for conducting the remediation shall correct any deficiency the department identifies in a document submitted concerning a remediation. The deficiency shall be corrected in accordance with timeframes established by the department.
f. A licensed site remediation professional may complete any phase of remediation based on remediation work performed under the supervision of another licensed site remediation professional, provided that the licensed site remediation professional: (1) reviews all available documentation on which he relies; (2) conducts a site visit to observe current conditions and to verify the status of as much of the work as is reasonably observable; and (3) concludes, in the exercise of independent professional judgment, that there is sufficient information upon which to complete any additional phase of remediation and prepare workplans and reports related thereto.
g. A licensed site remediation professional who has taken over the responsibility for the remediation of a contaminated site from another licensed site remediation professional shall correct all deficiencies in a document submitted by the previous licensed site remediation professional identified by the department in accordance with timeframes established by the department.
h. A licensed site remediation professional shall not certify any document submitted to the department unless the licensed site remediation professional: (1) believes that the information in the submission is true, accurate, and complete; and (2) has managed, supervised or performed the work that is the basis of the submission, or has periodically reviewed and evaluated the work performed by other persons that forms the basis for the information in the submission, or has completed the work of another licensed site remediation professional and has concluded such work is reliable pursuant to subsection f. of this section. A licensed site remediation professional shall not knowingly make any false statement, representation, or certification in any document or information required to be submitted to the board or the department.
i. A licensed site remediation professional shall exercise independent professional judgment, comply with the requirements and procedures set forth in the provisions of P.L.2009, c.60 (C.58:10C-1 et al.), make a good faith and reasonable effort to identify and obtain the relevant and material facts, data, reports and other information evidencing conditions at a contaminated site for which he is retained that is in possession of the owner of the property, or that is otherwise available, and identify and obtain whatever additional data and other information as the licensed site remediation professional deems necessary. The licensed site remediation professional shall disclose and explain in any document submitted to the department any facts, data, information, qualifications, or limitations known by the licensed site remediation professional that are not supportive of the conclusions reached in the document.
j. If a licensed site remediation professional obtains specific knowledge of a condition that in his independent professional judgment is an immediate environmental concern, then the licensed site remediation professional shall: (1) immediately verbally advise, and confirm in writing to, the person responsible for conducting the remediation of that person's duty to notify the department of the condition, provided the person is known to the licensed site remediation professional; and (2) immediately notify the department of the condition by calling the department's telephone hotline.
k. If a licensed site remediation professional retained to perform remediation at a site or any portion of a site obtains specific knowledge that a discharge has occurred at any location on the site, the licensed site remediation professional shall: (1) notify the person responsible for conducting the remediation of the existence of the discharge; and (2) notify the department of the discharge by calling the department's telephone hotline. The person responsible for conducting the remediation shall also be responsible for notifying the department of the existence of the discharge. The provisions of this subsection shall not apply to a discharge that may be a result of the existence of historic fill material.
l. If a licensed site remediation professional learns of an action or decision by a client that results in a deviation from the remedial action workplan or other report concerning the remediation developed by the licensed site remediation professional, the licensed site remediation professional shall promptly notify the client and the department, in writing, of the deviation.
m. A licensed site remediation professional shall not reveal information obtained in a professional capacity, except as may be authorized or required by law, without the prior consent of the client, if the client has notified the licensed site remediation professional, in writing, that the information is confidential. The provisions of this subsection shall not apply to information that is in the public domain.
n. A licensed site remediation professional who learns of material facts, data or other information subsequent to the completion of a report concerning a phase of remediation, which would result in a report with material differences from the report submitted, shall promptly notify the client and the department in writing of those facts, data, information, and circumstances.
o. A licensed site remediation professional who succeeds another licensed site remediation professional before the issuance of a response action outcome, and who learns of material facts, data or other information concerning a phase of the remediation for which a report was submitted to the department and the material facts, data or other information were not disclosed in the report, shall promptly notify the client and the department in writing of those facts, data, information, and circumstances.
p. A licensed site remediation professional shall not allow the use of his name by a person, and shall not associate with a person in a business venture, if the licensed site remediation professional knows or should know that the person engages in fraudulent or dishonest business or professional practices regarding the professional responsibilities of a licensed site remediation professional.
q. A licensed site remediation professional shall cooperate in an investigation by the board or the department by promptly furnishing, in response to formal requests, orders or subpoenas, any information the board or the department, or persons duly authorized by the board or the department, deems necessary to perform its duties. In an investigation by the board of a license application or a license suspension or revocation, a licensed site remediation professional shall not:
(1) knowingly make a false statement of material fact;
(2) fail to disclose a fact necessary to correct a material misunderstanding known by the licensed site remediation professional to have arisen in the matter;
(3) knowingly and materially falsify, tamper with, alter, conceal, or destroy any document, data record, remedial system, or monitoring device that is relevant to the investigation, without obtaining the prior approval of the department; or
(4) knowingly allow or tolerate any employee, agent, or contractor of the licensed site remediation professional to engage in any of the foregoing activities.
r. A licensed site remediation professional shall be jointly responsible for a violation of any provision of this section committed by another licensed site remediation professional whose work he supervises or reviews if:
(1) the licensed site remediation professional orders, directs, or agrees to the provision of professional services conducted or prepared by another licensed site remediation professional under his supervision;
(2) the licensed site remediation professional knows that the professional services constitute a violation of this section; and
(3) the licensed site remediation professional fails to take reasonable steps to avoid or mitigate the violation.
s. A licensed site remediation professional shall comply with all conditions imposed by the board as a result of a license suspension or other disciplinary proceeding conducted by the board.
t. A licensed site remediation professional shall inform a client or prospective client of any relevant and material assumptions, limitations, or qualifications underlying their communication. Evidence that a licensed site remediation professional has provided the client or prospective client with timely written documentation of these assumptions, limitations, or qualifications shall be deemed by the board or the department to have satisfied the requirements of this subsection.
u. A licensed site remediation professional shall not state or imply, as an inducement or a threat to a client or prospective client, an ability to improperly influence a government agency or official.
v. In any description of qualifications, experience, or ability to provide services, a licensed site remediation professional shall not knowingly:
(1) make a material misrepresentation of fact;
(2) omit a fact when the omission results in a materially misleading description; or
(3) make a statement that, in the opinion of the board, is likely to create an unjustified expectation about results the licensed site remediation professional may achieve, or state or imply that the licensed site remediation professional may achieve results by means that violate the provisions of applicable environmental statutes, rules or regulations, including the provisions of P.L.2009, c.60 (C.58:10C-1 et al.).
w. A licensed site remediation professional shall provide any notification to the board or the department required pursuant to this section, even if the licensed site remediation professional is discharged by the client prior to doing so.
x. A licensed site remediation professional shall not accept compensation, financial or otherwise, for professional services pertaining to a contaminated site from two or more persons whose interests are adverse or conflicting unless the circumstances are fully disclosed and agreed to by all clients engaging the licensed site remediation professional.
y. A licensed site remediation professional shall not be a salaried employee of the person responsible for conducting the remediation, or any related entities, for which the licensed site remediation professional is providing remediation services.
z. A licensed site remediation professional shall not allow any ownership interest, compensation, or promise of continued employment, of the licensed site remediation professional or any immediate family member, to affect the professional services provided by the licensed site remediation professional.
aa. Except as provided in subsection d. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), a licensed site remediation professional shall not facilitate, aid, assist, or cooperate with any person in retaining or arranging for the retention of any person who is not a licensed site remediation professional to perform remediation, unless the remediation is managed, supervised, or periodically reviewed and evaluated by a licensed site remediation professional retained for that purpose, and the department has been notified of the retention.
bb. Except as provided in subsection d. of section 30 of P.L.2009, c.60 (C.58:10B-1.3), a licensed site remediation professional shall not manage, supervise, perform, engage, or participate in remediation unless:
(1) the licensed site remediation professional has been retained by a person responsible for conducting the remediation, and the department has been notified of the retention; or
(2) the remediation is being managed, supervised, or performed by another licensed site remediation professional retained by the person responsible for conducting the remediation, and the department has been notified of the retention of the other licensed site remediation professional.
(a) Suspend or revoke the license of a licensed site remediation professional or impose another penalty on the licensed site remediation professional as determined by the board in accordance with subsection b. of this section;
(b) Bring a civil action in accordance with subsection c. of this section;
(c) Issue an administrative order in accordance with subsection d. of this section;
(d) Bring an action for a civil penalty in accordance with subsection e. of this section;
(e) Assess a civil administrative penalty in accordance with subsection f. of this section; or
(f) Petition the Attorney General to bring a criminal action in accordance with paragraph (2) of this subsection.
The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.
(2) A licensed site remediation professional who purposely, knowingly, or recklessly violates a provision of P.L.2009, c.60 (C.58:10C-1 et al.), including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained pursuant to P.L.2009, c.60 (C.58:10C-1 et al.), or by falsifying, tampering with, or rendering inaccurate any monitoring device or method, institutional or engineering control, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $75,000 per day of violation, or by imprisonment, or both.
b. (1) The board may suspend or revoke a license issued to a licensed site remediation professional pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7), or impose another penalty as determined by the board. The board may not suspend or revoke a license or impose another penalty until a violator has been notified by certified mail or personal service. The notice shall: (a) identify the statutory or regulatory basis of the violation; (b) identify the specific act or omission constituting the violation; (c) identify the license to be suspended or revoked, or the penalty to be imposed; and (d) affirm the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.
(2) A violator shall have 35 days from receipt of the notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all procedures set forth by the board shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the board shall issue a final order suspending or revoking the license, or imposing the penalty specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of intent to suspend or revoke the license or to impose the penalty shall become final after the expiration of the 35-day period. If the board denies a hearing request, the notice of denial shall become a final order, suspending or revoking the license, or imposing the penalty, upon receipt of the notice by the violator. Upon a determination of the board that the conduct of the licensed site remediation professional is so egregious as to pose an imminent threat to public health, safety, or the environment if the licensed site remediation professional is allowed to conduct remediation of sites or areas of concern pending a hearing on a revocation of the license, the board may suspend the license prior to the outcome of the hearing. Any order issued by the board suspending or revoking a license shall provide for the licensee's obligations regarding the maintenance and preservation of records regarding the licensee's remediation activities at contaminated sites.
c. If a person violates any provision of P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, or order adopted or issued pursuant thereto, the board may institute a civil action in Superior Court for appropriate relief for any violation of P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, or order adopted or issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction; or
(2) Assessment of the violator for the reasonable costs of any investigation which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.
d. (1) Whenever the board finds that any person is in violation of P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, or order adopted or issued pursuant thereto, the board may issue an order: (a) specifying the provision or provisions of P.L.2009, c.60 (C.58:10C-1 et al.), or the rule, regulation, or order adopted or issued pursuant thereto of which the person is in violation; (b) citing the action which caused the violation; (c) requiring compliance with the provision or provisions; and (d) giving notice to the person of the person's right to a hearing on the matters contained in the order.
(2) A violator shall have 35 days from receipt of the notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all procedures set forth by the board shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the board shall issue a final order. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the administrative order shall become final after the expiration of the 35-day period. If the board denies a hearing request, the notice of denial shall become a final order, upon receipt of the notice by the violator.
e. Any person who violates P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, code of conduct, or order adopted or issued pursuant thereto, or who fails to pay a civil penalty or civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 for a first violation and not more than $20,000 for every subsequent violation. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
f. (1) The board may assess a civil administrative penalty of not more than $10,000 for a first violation and not more than $20,000 for every subsequent violation of the provisions of P.L.2009, c.60 (C.58:10C-1 et al.) or any rule, regulation, code of conduct, or order adopted or issued pursuant thereto.
Prior to assessment of a penalty under this subsection, the board shall notify the person committing the violation by certified mail or personal service that the penalty is being assessed. In the notice the board shall: (a) identify the statutory or regulatory basis of the violation; (b) identify the specific citation of the act or omission constituting the violation; (c) state the basis for the amount of the civil penalties to be assessed; and (d) affirm the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.
(2) (a) A violator shall have 35 days from the receipt of the notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all procedures set forth by the board shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the board shall issue a final order assessing the amount of the civil administrative penalty specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of assessment of a civil administrative penalty shall become a final order after the expiration of the 35-day period. If the board denies a hearing request, the notice of denial shall become a final order upon receipt of the notice by the violator.
(b) Payment of the assessed penalty is due when a final administrative enforcement order is issued or the notice becomes a final order. The authority to levy a civil administrative order is in addition to all other enforcement provisions, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The board may compromise any civil administrative penalty assessed under this section in an amount and with conditions the board determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the board, which is not paid within 30 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
(3) The board may assess and recover, by civil administrative order, the costs of any investigation incurred by the board, and any other State agency, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty pursuant to this subsection. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.
g. A licensed site remediation professional may not apply for a new license for three years following the date of revocation of the license by the board or for the term established by the board pursuant to subsection b. of section 8 of P.L.2009, c.60 (C.58:10C-8). At the conclusion of the license revocation, the licensed site remediation professional shall follow the application procedures for licensure in accordance with section 7 of P.L.2009, c.60 (C.58:10C-7).
h. Upon the second revocation of a license, a licensed site remediation professional shall be permanently prohibited from applying for a site remediation professional license in this State.
b. Where necessary to ascertain facts relevant to, or not available at, such site, vessel, or other location, any person shall, upon request of any officer, employee, or duly authorized representative of the board or the department, furnish information relating to activities subject to the provisions of P.L.2009, c.60 (C.58:10C-1 et al.), and shall permit the officers, employees, or authorized representatives to have access to, and to copy, all records relating to the activities.
c. If the board or the department has reason to believe that any person has made fraudulent representations to the board or the department or has destroyed or concealed evidence relating to any activity subject to the provisions of P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, license, or order issued pursuant thereto, the board or the department may seize any records, equipment, property, or other evidence it deems necessary.
d. Whenever, on basis of available information, the board finds that there is a violation of any provision of P.L.2009, c.60 (C.58:10C-1 et al.), or of any rule, regulation, license, or order issued or adopted pursuant thereto, the board may issue to a person causing or contributing, or likely to cause or contribute, to the violation an order pursuant to the provisions of section 17 of P.L.2009, c.60 (C.58:10C-17), requiring the production or analysis of samples, requiring the production of records, or imposing such restraints on or requiring such action by the person. Issuance of an order pursuant to this section shall not preclude, and shall not be deemed an election to forego, any action to suspend or revoke a license, recover damages, or seek injunctive relief, civil or criminal penalties, or any other remedy.
The board shall cause notice of each order, and of the results of all adjudicatory proceedings related thereto, to be given to the department in order to enable the department to implement and enforce the provisions of P.L.2009, c.60 (C.58:10C-1 et al.) and all other applicable laws, rules and regulations.
b. The department may require any person who is responsible for the monitoring, operation, and maintenance of an engineering or institutional control implemented before the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), and any person required to submit a certification on a biennial basis pursuant to section 6 of P.L.1997, c.278 (C.58:10B-13.1), that engineering or institutional controls and related systems are properly maintained and that periodic monitoring for compliance is conducted, to obtain a permit pursuant to this section.
c. (1) Except as provided in paragraph (2) of this subsection, the department may require that a person issued a permit pursuant to this section maintain insurance, financial assurance or another financial instrument to guarantee that funding is available to operate, maintain, and inspect the engineering controls installed as part of a remedial action of a contaminated site for the period that such controls are required. The person required to maintain the funding source pursuant to this section may petition the department on an annual basis to decrease the amount of funding required to be maintained.
(2) A government entity, a person who is not otherwise liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) who purchases contaminated property before the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) and undertakes a remediation of the property, a person who undertakes a remediation at their primary or secondary residence, the owner or operator of a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.) who performs a remediation at the licensed child care center, the person responsible for conducting a remediation at a public school or private school as defined in N.J.S.18A:1-1, or a charter school established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.), or the owner or operator of a small business responsible for performing a remediation at their business property, shall not be required to establish or maintain a funding source pursuant to this section, for the operation, maintenance, and inspection of the engineering controls installed as part of a remedial action of a contaminated site.
d. A person who is issued a permit pursuant to this section shall retain a licensed site remediation professional to manage, supervise, or perform the requirements of the permit for the duration of the permit.
e. The department may charge, in accordance with a schedule adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), reasonable application fees to cover the costs of processing the application, and reasonable annual fees to cover the costs of the administration and enforcement of the permits.
b. The department shall perform additional review of any document, or shall review the performance of a remediation, if:
(1) the contamination at the site poses a significant detrimental impact on public health, safety, or the environment as determined by a receptor evaluation or the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16);
(2) the contamination at the site may affect a licensed child care center, school or other sensitive population;
(3) the contaminated site is located in a low-income community of color that has a higher density of contaminated sites and permitted discharges with the potential for increased health and environmental impacts, as compared to other communities; or
(4) State grants or loans are being used to remediate the site or area of concern.
c. The department may perform additional review of any document, or may review the performance of a remediation, if:
(1) the site or a portion thereof is in a brownfield development area or other economic development priority area;
(2) the remediation is subject to federal oversight;
(3) the person responsible for conducting the remediation or the licensed site remediation professional conducting the remediation has been out of compliance with P.L.2009, c.60 (C.58:10C-1 et al.), P.L.1993, c.139 (C.58:10B-1 et al.), P.L.1986, c.102 (C.58:10A-21 et seq.), P.L.1983, c.330 (C.13:1K-6 et al.), or P.L.1976, c.141 (C.58:10-23.11 et seq.), or any rules and regulations adopted pursuant to those laws;
(4) the contaminated site has had an impact on a natural resource;
(5) an oversight document, administrative order or remediation agreement is in effect for the contaminated site that requires department review and approval of submissions;
(6) there is substantial public interest in the contaminated site;
(7) the person responsible for conducting the remediation has proposed the use of alternative or site specific remediation standards for the contaminated site;
(8) the remediation requires the issuance of a permit by the department;
(9) the use of the contaminated site is changing from any use to residential or mixed use;
(10) the submission may not be in compliance with any rules and regulations applicable to contaminated site remediation; or
(11) the remediation may not be protective of the public health, safety, or the environment.
d. The licensed site remediation professional and the person responsible for conducting the remediation shall provide any data, documents or other information as requested by the department to conduct a review of the remediation pursuant to this section.
e. Unless directed otherwise by the department, the person responsible for conducting the remediation and the licensed site remediation professional may continue to conduct the remediation while the department conducts any inspection or additional review of documents pursuant to this section.
f. The department shall, at a minimum, provide additional review pursuant to this section of at least 10 percent of all documents submitted annually by licensed site remediation professionals.
a. undiscovered contamination is found on a site for which a response action outcome has been filed;
b. the board conducts an investigation of the licensed site remediation professional; or
c. the licensed site remediation professional who issued the response action outcome has had his license suspended or revoked by the board.
a. discloses, or undertakes to disclose, to the board or to the department an activity, policy or practice that the licensed site remediation professional reasonably believes: (1) is a violation of law, or a rule or regulation adopted pursuant to law, including any violation involving deception of, or misrepresentation to, any client, customer, the department, or any other governmental entity; or (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation that the licensed site remediation professional reasonably believes may defraud any client, customer, the department, or any other governmental entity;
b. provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry into any violation of law, or a rule or regulation adopted pursuant to law, by a client or customer with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any client, customer, the department or any other governmental entity, or, in the case of a licensed site remediation professional, provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry into the quality of remediation of a contaminated site; or
c. objects to, or refuses to participate in, any activity, policy or practice which the licensed site remediation professional reasonably believes:
(1) is in violation of law, or a rule or regulation adopted pursuant to law, including any violation involving deception of, or misrepresentation to, any client, customer, the department or any governmental entity;
(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the licensed site remediation professional reasonably believes may defraud any client, customer, the department, or any other governmental entity; or
(3) is incompatible with a clear mandate of public policy concerning the protection of the public health, safety, or the environment.
(1) the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) during any five-year period concerning a remediation;
(2) the person responsible for conducting the remediation at a contaminated site has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), including any extension thereof granted by the department, or a schedule established pursuant to an administrative order or court order; or
(3) unless a longer period has been ordered by a court, the person responsible for conducting the remediation has, prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), failed to complete the remedial investigation of the entire contaminated site 10 years after the discovery of a discharge at the site and has failed to complete the remedial investigation of the entire contaminated site within five years after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.).
If a person responsible for conducting a remediation fails to meet the conditions established in paragraph (3) of this subsection, or a requirement established pursuant to subsection a. of section 1 of P.L.2013, c.283 (C.58:10C-27.1), the department shall not undertake direct oversight of the contaminated site if the person demonstrates, and the department finds, that:
(1) the person was unable to meet the applicable timeframe because the person was unable to enter the contaminated site because the person does not own the property, and the person took all appropriate and timely action pursuant to section 40 of P.L.1993, c.139 (C.58:10B-16) prior to the applicable timeframe; or
(2) the contaminated site is subject to federal oversight, the person has made timely submissions to the department, and the person was unable to meet the applicable timeframe due to the performance of additional review by the department pursuant to subsection c. of section 21 of P.L.2009, c.60 (C.58:10C-21).
As used in this subsection, "enforcement action" means an administrative order, a notice of civil administrative penalty, or a court order.
b. The department may undertake direct oversight of a remediation of a contaminated site under the following conditions:
(1) the contamination at the site includes chromate chemical production waste;
(2) the department determines that more than one environmentally sensitive natural resource has been injured by contamination from the site;
(3) the site has contributed to sediments contaminated by polychlorinated biphenyl, mercury, arsenic, or dioxin in a surface water body; or
(4) the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16).
c. For any site subject to direct oversight by the department pursuant to this section:
(1) the department shall review each document submitted by a licensed site remediation professional and shall approve or deny the submission;
(2) a feasibility study shall be performed and submitted to the department for approval;
(3) the department shall select the remedial action for the site;
(4) the person responsible for conducting the remediation shall establish a remediation funding source other than a self-guarantee pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) in the amount of the estimated cost of the remediation;
(5) all disbursements of funds from the remediation funding source shall require prior approval by the department;
(6) all submissions prepared by the licensed site remediation professional concerning the remediation required by the department shall be provided simultaneously to the department and the person responsible for conducting the remediation; and
(7) the person responsible for conducting the remediation shall implement a public participation plan approved by the department to solicit public comment from the members of the surrounding community concerning the remediation of the site.
d. The department shall issue guidelines establishing specific criteria for the conditions under which a site may be subject to direct oversight pursuant to subsection b. of this section.
e. (1) Any oversight procedure, remedy, or other obligation in P.L.2009, c.60 (C.58:10C-1 et al.) shall not affect a remediation conducted pursuant to and in compliance with a settlement of litigation to which the department is a party if the settlement (a) occurred prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), or (b) is a settlement of litigation pending on the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.).
(2) For any litigation pending or settled on the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), concerning a remediation performed pursuant to the "Resource Conservation and Recovery Act," 42 U.S.C. s.6921 et seq., nothing in P.L.2009, c.60 (C.58:10C-1 et al.) shall affect an oversight procedure, remedy, or other obligation imposed by a federal administrative order or federal court order.
f. When a contaminated site is subject to direct oversight pursuant to this section, the requirements of direct oversight shall run with the site, regardless of who owns the property, and regardless of whether there is a transfer of ownership of the property.
g. (1) The department may modify the direct oversight requirements of subsection c. of this section for a contaminated site if:
(a) the person responsible for conducting the remediation demonstrates financial hardship that prevents the performance of the remediation due to the imposition of direct oversight pursuant to this section; or
(b) there is a public emergency, as declared by the Governor or the President of the United States, or an official authorized to act on their behalf, that resulted in a delay in meeting the mandatory or expedited site-specific timeframe or other condition that triggered direct oversight.
(2) The department may modify the direct oversight requirements of subsection c. of this section for a contaminated site if the department makes a written determination that the modification is in the public interest and protective of the public health and safety and the environment. At least 60 days prior to making a modification pursuant to this paragraph, the department shall publish its written determination and the proposed modification to the requirements of direct oversight, including the reasons for its determination, on the department's Internet website. The department shall solicit and accept public comments on the proposed modification for a period of at least 30 days after the date of publication. The department shall consider the public comments received during the comment period prior to making a modification pursuant to this paragraph.
(3) The department may, prior to a change in ownership of a contaminated site, enter into an administrative consent order with the prospective purchaser of the contaminated site providing for the modification of any or all of the direct oversight requirements of subsection c. of this section for the contaminated site. The department shall not enter into an administrative consent order pursuant to this paragraph with any person who:
(a) has discharged a hazardous substance at the contaminated site, is in any way responsible for a hazardous substance at the site, or is otherwise liable for cleanup and removal costs at the site;
(b) has owned or operated the contaminated site; or
(c) is a predecessor, successor, subsidiary, partner, shareholder, assign, trustee in bankruptcy, responsible corporate official, or receiver appointed pursuant to a proceeding in law or equity, to any person described in subparagraphs (a) and (b) above.
(4) The department may reinstate any or all of the direct oversight requirements that it modifies pursuant to paragraph (1), (2), or (3) of this subsection if, after the modification, the department finds that the person responsible for conducting the remediation has failed to comply with any applicable timeframe, administrative consent order modifying the requirements of direct oversight, or any law, rule, or regulation concerning the remediation of contaminated sites.
(1) a licensed site remediation professional has been retained to conduct a remediation of the site;
(2) any remediation requirements included in mandatory remediation timeframes adopted pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), for the site have been met at the time of the certification;
(3) technically complete submissions have been made in compliance with all rules and regulations for site remediation, as applicable, for the (a) initial receptor evaluation, (b) immediate environmental concern source control report, (c) light non-aqueous phase liquid interim remedial measure report, (d) preliminary assessment report, and (e) site investigation report;
(4) a remediation funding source has been established, if required of the applicant by section 25 of P.L.1993, c.139 (C.58:10B-3);
(5) if a remediation funding source is not required to be established by the applicant pursuant to law, then a remediation trust fund for the estimated cost of the remedial investigation has been established pursuant to the standards established in section 25 of P.L.1993, c.139 (C.58:10B-3);
(6) any oversight costs imposed by the department, known at the time of the application, and not in dispute on the date of enactment of P.L.2013, c.283 (C. 58:10C-27.1 et al.), have been paid to the department; and
(7) the annual fees imposed by the department for the remediation and remediation funding source surcharges imposed pursuant to section 33 of P.L.1993, c.39 (C.58:10B-11) have been paid to the department, as applicable.
An application pursuant to this subsection shall be submitted to the department by March 7, 2014 or 30 days after the date of enactment of P.L.2013, c.283 (C. 58:10C-27.1 et al.), whichever is later.
b. For any site subject to the provisions of paragraph (3) of subsection a. of section 27 of P.L.2009, c.60 (C.58:10C-27), if the failure to complete the remedial investigation of the contaminated site is due to a delay in the provision of State financial assistance for the remediation from the Hazardous Discharge Site Remediation Fund, upon application by a person responsible for conducting the remediation, an extension of time shall be provided to allow for the completion of the remedial investigation prior to the department taking direct oversight, except as provided in subsection c. of this section. The applicant shall submit to the department a certification that the person responsible for conducting the remediation filed a technically and administratively complete application for funding prior to March 7, 2014 or 30 days after the date of enactment of P.L.2013, c.283 (C. 58:10C-27.1 et al.), whichever is later, qualifies for funding, and remains eligible for funding. Every six months after the submission of the application for the extension of time pursuant to this subsection, the applicant shall submit to the department a certification with an update on the status of the funding application.
The extension of time for the completion of a remedial investigation of a contaminated site prior to the department taking direct oversight of the remediation pursuant to this subsection shall be no more than two years after receipt of funding, or no more than two years after the applicant is no longer eligible for funding.
An application for an extension of time pursuant to this subsection shall be submitted to the department by March 7, 2014 or 30 days after the date of enactment of P.L.2013, c.283 (C. 58:10C-27.1 et al.), whichever is later.
c. An application submitted pursuant to subsection a. or b. of this section shall be deemed approved upon receipt by the department. The department may undertake direct oversight of a remediation if, at any time during the extension of time: (1) the conditions imposed pursuant to subsection a. or b. of this section, as the case may be, are no longer met; or (2) the person responsible for conducting the remediation fails to meet a mandatory remediation timeframe after submission of the certification submitted pursuant to this section. The department shall so notify the person responsible for conducting the remediation, in writing, that the extension of time for completion of the remedial investigation is revoked because of the applicant's failure to continue to comply with the conditions required, or the applicant's failure to submit one or more of the certifications required pursuant to subsection a. or b. of this section, or that the information included in a certification is incomplete, incorrect, false, or otherwise deficient.
d. The department shall provide notice on its internet website of any extensions provided pursuant to this section. In the notice, the department shall provide the name and location of the site for which the extension is provided and the length of the extension of time.
(1) a receptor evaluation;
(2) control of ongoing sources of contamination;
(3) establishment of interim remedial measures;
(4) addressing immediate environmental concern conditions;
(5) the performance of each phase of the remediation including preliminary assessment, site investigation, remedial investigation and remedial action;
(6) completion of remediation; and
(7) any other activities deemed necessary by the department to effectuate timely remediation.
b. In establishing remediation timeframes pursuant to subsection a. of this section, the department shall take the following into account:
(1) the potential risk to the public health, safety, and the environment;
(2) the results of the receptor evaluation;
(3) the ongoing industrial or commercial operations at the site;
(4) whether, for operating industrial or commercial facilities, there are no releases of contamination to the groundwater or surface water from the site; and
(5) the complexity of the contaminated site.
c. The department shall grant an extension to a mandatory remediation timeframe as a result of:
(1) a delay by the department in reviewing or granting a permit, provided that there was a timely filing of a technically and administratively complete permit application;
(2) a delay in the provision of State funding for remediation, provided that there was a timely filing of a technically and administratively complete application for funding; or
(3) a delay by the department for an approval or permit required for long-term operation, maintenance and monitoring of an engineering control at the site provided the request for approval or permit application is technically and administratively complete.
d. The department may grant an extension to a mandatory remediation timeframe on a case-by case basis as a result of:
(1) a delay in obtaining access to property, provided the person responsible for conducting the remediation demonstrates that good faith efforts have been undertaken to gain access, access has not been granted by the property owner, and, after good faith efforts have been exhausted, a complaint was filed with the Superior Court to gain access, in accordance with applicable rules and regulations;
(2) other circumstances beyond the control of the person responsible for conducting the remediation, such as fire, flood, riot, or strike; or
(3) other site-specific circumstances that may warrant an extension as determined by the department.
Definitions. As used in this act:
"Water supply system" means a system comprising structures which operating alone or with other structures result in the derivation, conveyance (or transmission), or distribution of water for potable or domestic purposes.
"Approved public potable water supply" means a water supply which has been approved by the Department of Health of the State of New Jersey under the provisions of article 1 of chapter 10 of Title 58 and article 1 of chapter 11 of Title 58 of the Revised Statutes, and is operating under said sections.
"Unapproved water supply" means a water supply which is not approved by the Department of Health of the State of New Jersey under the provisions of article 1 of chapter 10 of Title 58 and article 1 of chapter 11 of Title 58 of the Revised Statutes.
"A physical connection" means any cross-connection, by-pass, valve, pipeline, auxiliary intake, or any device which permits or may permit any flow of water into an approved public potable water supply from an unapproved water supply.
"Approved physical connection" means an installation constituting of a physical connection installed, owned, maintained, and operated in accordance with rules and regulations of the State department.
"State department" means State Department of Health.
No person, corporation, or municipality shall maintain, own, or operate a physical connection between an approved public potable water supply and an unapproved water supply, unless the person, corporation, or municipality first obtains a permit from the State Department. All such permits shall expire on April first of each year unless an earlier date is specified in the permit.
The State department, before it issues any permit under the provisions of this act, shall be satisfied of the following facts:
(a) That the physical connection between an approved public potable water supply and an unapproved water supply is protected by an approved physical connection.
(b) That the physical connection has the approval of the local board of health of the municipality whose approved public potable water supply may be affected; and
(c) That the physical connection has the approval of the person, corporation, or municipality owning the approved public potable water supply which may be affected.
The State department shall establish such rules and regulations, as in its judgment may be necessary for the design, installation, testing and maintenance of an approved physical connection, and shall establish such form or forms as in its judgment may be necessary to ascertain the facts that the approved physical connection is of the standard required and is operating in a satisfactory manner in accordance with the rules, regulations, or statutes set forth in section 3 of this act, and such other forms as may be necessary to the proper administration of this act.
Each application for the installation of an approved physical connection, and for the continuance of the approved physical connection, shall be made upon forms supplied by the State department.
Upon evidence duly ascertained by the State department, or by the commissioner of health, or furnished to the department by any local board of health, or by the owner of an approved public water supply, that the person authorized under a permit issued under the provisions of this act to maintain an approved physical connection, is violating any of the rules, regulations, or statutes governing such physical connection, the State department or the commissioner of health shall, upon hearing, revoke such permit.
No such permit shall be renewed or restored until the State department is satisfied that all the provisions of this act are or have been strictly complied with.
The State department, before it renews any permit, shall be satisfied of the following facts:
(a) That the approved physical connection has been tested for tightness under prevailing pressure conditions at least every 3 months;
(b) That the approved physical connection has been subjected to an internal inspection within 6 months prior to the application; and
(c) That the local board of health, the State department, and the owner of the water supply set forth in section 3 of this act, have determined that the approved physical connection was functioning satisfactorily.
The physical connection provided for in section two of this act shall be inspected by the engineers or inspectors of the State Department, by the local board of health whose approved public potable water supply may be affected, or, by the owner of the approved public potable water supply which may be affected.
Whoever violates any of the provisions of section two of this act shall be liable to a penalty of one hundred dollars ($100.00) for each offense, and each day's continuance of a violation after notice to abate or remove the unapproved physical connection shall have been given by the State Department, the local board of health having jurisdiction over the place where such violation was committed, or, the owner of the approved public potable water supply which is or may be affected by such violation, shall constitute a separate offense. Nothing in this section shall be construed to modify or otherwise affect any other law or statute conferring upon any local board of health or the owner of any approved public potable water supply the power or authority to institute any proceedings in any court of this State for the recovery of any penalty for, or obtaining any injunction against, the pollution of any of the public supplies of potable waters in this State.
If any person, corporation, or municipality, or any municipal authority shall violate any of the provisions of sections two and five of this act, the State department, whether or not the penalty prescribed by section eight of this act shall have been sued for or recovered, may institute a civil action in the Superior Court in the name of the State on the relation of the department for injunctive relief to prohibit the further violation of said sections two and five.
The local board of health having jurisdiction over the place where such offense was committed, or the owner of the potable water supply which is or may be affected by such offense, whether or not such penalty shall have been sued for or recovered, may institute a civil action in the Superior Court in the name of such board or owner for injunctive relief to prohibit further violation of the said sections two and five.
Nothing in this article shall be construed as requiring the local board of health or the owner of the supply specified in section three of this act, to approve an application to establish a physical connection.
This act shall be known and may be cited as "The Realty Improvement Sewerage and Facilities Act (1954)."
As used in this act, unless the context clearly indicates otherwise, the following words shall have the following meanings:
(a) "Approved potable water supply" means water supply which has been approved by the State Department of Environmental Protection pursuant to Title 58 of the Revised Statutes, or any other law.
(b) "Approved sewer system" means a sanitary sewer system which has been approved by the State Department of Environmental Protection pursuant to Title 58 of the Revised Statutes, or any other law.
(c) "Water supply system" means any installation or structure designed to provide domestic or potable water supply.
(d) "Sewerage facilities" means any installation or structure designed to provide for the collection and disposal of sewage.
(e) "Realty improvement" means any proposed new residence or other building the useful occupancy of which shall require the installation or erection of a water supply system or sewerage facilities, other than one which is to be served by an approved water supply and an approved sewerage system. For the purposes of this act, each family unit in a proposed multiple family dwelling shall be construed to be a separate realty improvement.
(f) "Board" or "board of health" means the board of health of any municipality or the boards, bodies or officers in such municipality lawfully exercising any of the powers of a board of health under the laws governing such municipality, and includes any consolidated board of health or county board of health created and established pursuant to law.
(g) "State department" means the State Department of Environmental Protection.
(h) "Professional engineer" means a person licensed to practice professional engineering in this State.
No building permit for the construction of a realty improvement shall be issued by any municipal or other authority in this State nor shall the construction of any realty improvement be begun until the board of health having jurisdiction shall have certified that the proposed water supply system and sewerage facilities for the proposed realty improvements are in compliance with the provisions of this act and the standards for construction of such water supply and sewerage facilities promulgated by the State Department as herein provided and those established by local ordinances, where such local ordinances prescribe higher standards than those promulgated by the State Department.
As used in this act:
a. "Acceptable alternative greywater system" means a system for the treatment and disposal of wastewater which normally does not receive human body wastes or industrial waste and is approved for use by a local health department.
b. "Acceptable alternative waste treatment system" means a waste system which has been approved for use by the State department and which is properly operated and maintained so as not to cause a health hazard or nuisance. An acceptable alternative waste treatment system may include an organic waste treatment system or compost toilet which operates on the principle of decomposition of heterogeneous organic materials by aerobic and facultatively anerobic organisms and utilizes an effectively anaerobic composting process which produces a stabilized humus. Acceptable alternative waste treatment system does not include a septic tank--drain field system or other system that results in a discharge to the ground or surface water of this State.
c. "Structure" means a building in which toilet, kitchen, laundry, bathing, or other facilities which generate less than 2,000 gallons per day of water-carried sanitary sewage are used or are available for use for household, commercial, industrial, or other purposes.
Notwithstanding any other law, rule, regulation or ordinance to the contrary, a person may install and use in a structure an acceptable alternative waste treatment system or an acceptable alternative waste treatment system in combination with an acceptable alternative greywater system. Installation and use of an acceptable alternative waste treatment system or an acceptable alternative waste treatment system in combination with an acceptable alternative greywater system shall be subject to local health department regulation and inspection by the appropriate subcode official in accordance with the State Uniform Construction Code, pursuant to P.L.1975, c. 217 (C. 52:27D-119 et seq.).
A person who installs and uses an acceptable alternative waste treatment system or an acceptable alternative waste treatment system in combination with an acceptable alternative greywater system shall not be exempt from any special assessments levied by a municipality for the purpose of financing the construction of an approved sanitary sewer system and sewerage facilities.
Within 180 days of the effective date of this act, the Department of Environmental Protection and the Department of Community Affairs shall jointly establish minimum standards regarding the appropriate installation and use of acceptable alternative waste treatment systems and acceptable alternative waste treatment systems in combination with acceptable alternative greywater systems.
No subdivision approval shall be granted by any municipal or other authority in the State to cover 50 or more realty improvements, or less than 50 where the subdivision extends into an adjoining municipality or municipalities and will, in the aggregate, cover 50 or more realty improvements, until the State Department of Environmental Protection has certified that the proposed water supply and sewerage facilities for realty improvements comply with applicable State standards.
Any board of health which has in its employ a licensed health officer or sanitary inspector of the first grade licensed by the State Department or a professional engineer shall issue certifications as provided in section 3 of this act if such health officer, sanitary inspector or professional engineer certifies to the board that the application and accompanying engineering data are in compliance with this act and the standards for construction hereinbefore referred to.
A board of health not having personnel as described above may issue such certification, if an applicant for certification files with the board a certificate made by a professional engineer stating that the proposed water supply system and sewerage facilities are in compliance with this act and said standards for construction.
Application for certification shall be in writing and shall be made on a formal application blank when such blanks are provided by the board, and each application shall include such engineering data as shall be prescribed by said standards for construction.
Copies of all applications and the accompanying engineering data for certifications to cover 50 or more realty improvements shall be filed with or mailed to the State Department on the date on which application is made to the board.
Copies of all certifications by boards of health covering 50 or more realty improvements shall be mailed to the State Department by the board issuing the same on the date of issue.
The board of health shall issue or deny certification within 15 days after receiving an application for certification except that, in case the board finds the data submitted by an applicant incomplete, the time for acting thereon shall be extended by 15 days beyond the date of submission of adequate supplementary or amendatory data. Denial of certification shall be supported by a statement of the reasons for such action.
The State Department may revoke any certification covering 50 or more realty improvements; provided, that such action is taken within 15 days of the date of certification by the board of health; and provided, that such action is supported by a statement of the reasons therefor. If after revocation of any certification by the State Department, or denial of certification by the board, in any such case, such application is amended or supplemented, a copy thereof shall be filed with or mailed to the department on the date of its submission.
If any change in the physical conditions of any lands of a realty improvement, which will materially affect the operation of the water supply system or sewerage facilities covered by any certification issued under this act, shall be made after certification, the certification shall become null and void and a new certification shall be obtained before construction shall proceed. If 50 or more realty improvements are covered by such a voided certificate a copy of the application for a new certificate shall be mailed to the State Department on the date upon which it is submitted to the board.
In case any certification is denied by the board of health or is denied or revoked by the State department, a hearing shall be held thereon before the board or the State department, as the case may be, within 15 days after request therefor is made by the applicant and upon such hearing the board of health or the State department, as the case may be, shall affirm, alter or rescind its previous determination and take action accordingly within 15 days after the date of such hearing.
A board of health or the State department shall have power to make, or cause to be made, such inspections and tests as may be necessary to carry out the purposes of this act and its authorized representatives shall at all times have the right to enter upon lands of realty improvements for said purposes.
No septic tank, tile field, seepage pit or system or structure designed to provide sewerage facilities to any realty improvement shall be covered from view until the same has been inspected by an authorized representative of the board of health and permission to cover the same has been given by the board or its authorized representative.
Copies of any ordinances, which have been or shall be adopted by any municipality, establishing requirements equivalent to those required by this act and minimum standards for construction equivalent to those promulgated or to be promulgated by the State Commissioner of Health under this act, shall be filed with the State Department within 10 days after the effective date of this act or within 10 days after the adoption thereof, whichever shall be later.
There shall be appointed biennially an advisory committee to draft and recommend standards for the construction of water supply systems and sewerage facilities for realty improvements in order to insure their safety, adequacy and propriety for the purposes for which they are to be installed. One member of such committee shall be appointed by the Commissioner of Conservation and Economic Development from his department, 1 member shall be appointed by the State Commissioner of Health from his department and 1 member shall be appointed by the State Commissioner of Health from each list of 3 persons submitted by each of the following associations, namely:
New Jersey Association of Real Estate Boards,
New Jersey Health Officers Association,
New Jersey Society of Professional Engineers,
New Jersey State League of Municipalities,
New Jersey Home Builders Association,
New Jersey Institute of Municipal Attorneys, and
New Jersey Title Insurance Association.
In event that any of said associations shall fail to submit a list of such names within 10 days after written request to it by the State Commissioner of Health, the State Commissioner of Health may make the appointment according to his own discretion.
Such draft of recommended standards shall be submitted to the State Commissioner of Health who, having given due consideration to the same, shall promulgate standards for the construction of water supply systems and sewerage facilities for realty improvements in order to insure their safety, adequacy and propriety for the purposes for which they are to be installed, which standards shall constitute the minimum requirements to be met by applicants for certifications under this act. The standards shall specify the engineering data required to be submitted with applications for certification which shall include a plan of the land to be used for the realty improvement, elevations of existing and proposed physical features, reasonable details on surface and subsurface soil conditions, and, details of the type of construction and the physical features of the proposed water and sewerage facilities, and shall specify minimum requirements for the construction or erection of proposed water supply systems and sewerage facilities. Amendments of standards for construction shall be made in the manner prescribed for the establishment of the original standards and the advisory committee shall be consulted on all proposed amendments.
b. The provisions of subsection a. of this section shall become inoperative upon the adoption, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), of rules and regulations by the department instituting credential requirements for all installers of individual subsurface sewage disposal systems.
In case the State Commissioner of Health shall not concur in any of the advisory committee's recommendations as to the standards for construction or any amendments thereof or supplements thereto, and shall promulgate standards not in accord with the committee's recommendations, the committee may appeal to the State Public Health Council thereon and shall be entitled to a hearing before the Council. After such hearing the Council shall make appropriate recommendations to the State Commissioner of Health who shall in turn make such changes, if any, in the standards for construction promulgated by him, as he deems in the interest of the public health.
No person or corporation shall construct or install any water supply system or sewerage facilities for a realty improvement, which are not in accordance with the provisions of the application or any amendment thereof or supplement thereto, made for any certification on which a certification shall be issued as herein provided, and any person or corporation violating any provisions of this section shall be subject to the penalties and remedies hereinafter provided for, which may be recovered and enforced by the board of health having jurisdiction in the municipality in which such violation shall occur.
Any person or corporation violating any provision of this act shall be liable to a penalty of $200.00 for each offense and an additional penalty of $25.00 for each day of continuance of violation after notice of the violation shall have been given to such person or corporation by the State department or the board of health having jurisdiction in the municipality in which such violation occurs, to be collected and enforced by summary proceedings for the collection of penalties pursuant to the "Penalty Enforcement Law."
The board of health having jurisdiction on the municipality in which any violation of any provision of this act occurs shall have the right to order all further work in and about any water supply system or sewerage facilities, which is being erected or installed in violation of this act, to be stopped forthwith, except such work as shall be necessary to remedy such violation, and, thereafter, to continue such work without any violation of any of the provisions of this act, and after the issuance of any such order and the service of a copy thereof upon any person connected with or working in and about the erection or installation of any such water supply system or sewerage facilities, or any part thereof, no further work shall be done thereon except as aforesaid and any person or corporation who, after having been served with a copy of such an order, shall do any work or cause or permit any work to be done in or about the same, except such as is hereinbefore provided, shall be liable to a penalty of $200.00 to be collected and enforced by summary proceedings for the collection of penalties pursuant to the "Penalty Enforcement Law."
In case any water supply system or sewerage facilities or any part thereof is about to be, or is, or has been, erected or installed after the effective date of this act in violation of any of the provisions of this act as aforesaid, such erection or installation is hereby declared to be a nuisance and the State department or the board having jurisdiction in the municipality in which the realty improvement is situate, may institute a civil action for an injunction to prohibit the further violations of this act in any court of competent jurisdiction, which court shall have power to order an abatement of such nuisance, and to prevent its further maintenance, and any further violation of this act, by injunction or otherwise according to the practice of said court, and the court may proceed in a summary manner.
This act shall take effect September 1, 1954.
The State department shall study the various geographical areas of the State, from time to time, to determine whether any such areas should be restricted as to the types of sewerage facilities which may be thereafter constructed in such areas. In conducting such a study, the State department shall give consideration to factors such as soil conditions, ground-water table levels, population densities and projected growth trends and such other factors which could affect the safe and proper operation of sewerage facilities in the area under study.
If the State department shall determine that it is essential to the public health and well-being of the inhabitants residing in the area to restrict or regulate the type or types of sewerage facilities which may thereafter be constructed in such area, it shall by appropriate regulation designate the area as a critical area for sewerage purpose.
A regulation designating an area as a critical area for sewerage purposes shall specify the specific geographical area contained within such critical area and the type or types of sewerage facilities which may thereafter be constructed in the critical area.
Prior to promulgation of such regulation, the State department shall hold a public hearing thereon within such area. The State department shall cause to be published at least once not less than 15 days prior to such hearing in each of the municipalities within the critical area proposed to be designated as such by the department, in a newspaper published in each of said municipalities, or if no newspaper be published in any such municipalities, then in a newspaper circulated in such municipalities, a notice of such hearing specifying the time when and place where such hearing will be held, together with a description of the area proposed to be designated as a critical area and a brief summary of the type or types of sewerage facilities which may thereafter be constructed therein.
Following such hearing and after consultation with the Department of Conservation and Economic Development, the State department shall adopt such regulations designating a critical area and specify the geographical area contained within such critical area, as well as the type or types of sewerage facilities which may thereafter be constructed therein, as may be reasonable and necessary to protect public health. No such regulations shall be promulgated until at least 60 days after the State department has conducted its public hearing. Such rules and regulations shall be published and distributed to local governing bodies and local boards of health in all designated critical areas.
Any person who violates any of the provisions of this act or the rules and regulations adopted hereunder shall be liable to the penalties set forth in section 17 of the act of which this act is a supplement.
The Legislature finds, determines and declares that sewage treatment plants are unable to adequately treat certain sewage discharged into the systems because of the characteristics and composition of the waste, that certain potent discharges have interfered with and damaged the sewage treatment plant processes, and that these occurrences should be prevented by the adoption and enforcement of rules and regulations requiring the treatment of certain wastes prior to their discharge into sewerage systems.
As used in this act, unless otherwise clearly indicated or required by the context:
a. "Department" means the State Department of Environmental Protection.
b. "Commissioner" means the State Commissioner of Environmental Protection.
c. "Public sewage treatment plant" means any structure or structures by means of which domestic or industrial wastes are subjected to any artificial process in order to remove or so alter constituents as to render the wastes less offensive or dangerous to the public health, comfort or property of any of the inhabitants of this State before the discharge of the plant effluent into any of the waters of this State.
d. "Sewage" means any domestic or industrial waste which is or is intended, required or proposed to be subjected to treatment in a public sewage treatment plant. It shall include but not be limited to substances which are (a) nondegradable (b) highly toxic and (c) radioactive.
e. "Pretreatment standards" means those standards as to physical, chemical or biological characteristics to which sewage must conform before it may lawfully be discharged into a public sewage treatment plant under the provisions of this act.
f. "Person" means and shall include corporations, companies, associations, societies, firms, partnerships, and joint stock companies as well as individuals, and shall also include all political subdivisions of this State or any agencies or instrumentalities thereof.
The commissioner shall have the power to establish and from time to time alter or abolish rules and regulations establishing pretreatment standards to which sewage must conform before it may lawfully be discharged into the collection system of a public sewage treatment plant in this State. In establishing, altering or abolishing such rules and regulations, the commissioner shall give due consideration to: (1) the treatment capabilities and operating efficiency of the plant or plants to which they apply and (2) the standards required of the effluent of such plant or plants in conformity with established policy of the State and existing rules of the department concerning the prevention and abatement of water pollution.
The Legislature finds and declares that only the most contaminated sludges are ocean disposed; that these sludges are generated by sewage treatment plants, which receive large quantities of contaminated industrial wastewater; that land-based disposal of sludge requires the removal of these contaminants from the waste stream; that even if ocean dumping of sludge continues, it is prudent to minimize the presence of contaminants in the sludge; that the removal of contaminants from industrial wastewater requires additional standards, which the Department of Environmental Protection is singularly qualified to develop; and that to develop these stricter standards, the department requires additional resources.
The Department of Environmental Protection shall accelerate the industrial wastewater pretreatment program, hire additional personnel, develop stricter standards for industrial discharges, and increase enforcement and monitoring of pretreatment permittees.
After the effective date of any pretreatment standards established as provided in this act, no person, firm or corporation, public or private, or any public agency or instrumentality shall discharge into the collection system of a public sewage treatment plant under the operation or control of any county or municipality, or of any public agency or instrumentality established by or pursuant to any law of this State and having as its purpose or one of its purposes the operation of a public sewage treatment plant, or permit to be discharged into the collection system of any such treatment plant under its operation or control, any sewage which does not comply with the aforesaid pretreatment standards. In setting a date for the conformance to pretreatment standards by public sewage treatment plants and their users the commissioner shall provide a reasonable amount of time to remedy the existing situation and to comply with the pretreatment standards.
For the purpose of enforcing the provisions of this act and the rules and regulations adopted pursuant thereto, the municipalities, authorities, commissions, or any public bodies or agencies, owning, operating or controlling, separately or jointly, any public sewage treatment plant shall:
a. Require that any person, corporation, or municipality desiring to make any sewage connection or discharge or continue to discharge sewage which includes or consists of industrial wastes into such public sewage treatment plant make application therefor in writing on forms provided by said municipality, authority, commission, or other public body or agency;
b. Adopt rules and regulations setting forth the information required to be stated in the application aforesaid, in order to provide full information as to the quantity, character and composition of any sewage which may be discharged into the public sewage treatment plant, and establishing requirements and procedures for prompt amendment of said application in the event of significant changes in the quantity, character or composition of such sewage.
c. Make or cause to be made inspection of the discharging facilities of any person, corporation, or municipality who may be discharging sewage or permitting sewage to be discharged into sewerage systems under its jurisdiction, in order to determine compliance with the pretreatment standards set by the department.
If any person, corporation or municipality violates any of the provisions of this act or rules and regulations promulgated thereunder, the department or any county, municipality, authority, commission, or any other public body or agency owning, operating or controlling, separately or jointly, the sewage treatment works wherein the said violation occurs may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent such violation and the said court may proceed in the action in a summary manner.
a. Any person, corporation, or municipality who shall violate any of the provisions of this act or any rules or regulations promulgated thereunder shall be subject to the applicable provisions of section 10 of P.L.1977, c.74 (C.58:10A-10) and section 6 of P.L.1990, c.28 (C.58:10A-10.1), to be collected in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.), or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court shall have jurisdiction to enforce "the penalty enforcement law".
b. A public entity operating and controlling a public sewage treatment plant shall, in accordance with subsection a. of this section, enforce any applicable pretreatment standard adopted by the public entity pursuant to section 9 of P.L.1972, c.42 (C.58:11-57), or shall obtain injunctive relief against a violation or threatened violation of a pretreatment standard. A public entity operating and controlling a public sewage treatment plant with pretreatment standards adopted by the commissioner pursuant to section 3 of P.L.1972, c.42 (C.58:11-51), may enforce applicable pretreatment standards in accordance with subsection a. of this section, or obtain injunctive relief as provided in this subsection. The action shall be brought in the name of the local public entity. Of the amount of any penalty assessed and collected pursuant to subsection a. of this section, 10% shall be deposited in the "Wastewater Treatment Operators' Training Account," established in accordance with section 13 of P.L.1990, c.28 (C.58:10A-14.5), and used to finance the cost of training operators of public sewage treatment plants. The remainder shall be used by the local agency solely for enforcement purposes, and for upgrading treatment works.
If any county, municipality, authority, commission, or other public body or agency owning, operating or controlling, separately or jointly, a public sewage treatment plant or the department finds that any person, corporation or municipality is discharging sewage into a public sewage treatment plant in violation of the provisions of this act or regulations promulgated thereunder, the said county, municipality, authority, commission, or other public body or agency, and the department, may in addition to any remedies provided under sections 6 and 7 of this act, take such steps as may be necessary to seal or close off such sewerage connections from the public sewage treatment plant until it is satisfied that adequate measures have been taken to prevent the recurrence of such violation.
Nothing in this act shall be construed as requiring any public sewage treatment plant to grant a connection or permit the discharge into its treatment facilities of any sewage which, in the judgment of the official body responsible for the management and control of said plant, exceeds the capabilities of the plant to treat adequately. Such official body may, in addition to any pretreatment standards imposed under this act, require of any user or prospective user of its facilities such other pretreatment of industrial wastes as it deems necessary to make possible the adequate treatment of such wastes.
If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.
At the hearing the department and the board shall state the costs that are expected to be borne by the current users of the small water company, small sewer company, or both. The department shall propose an administrative consent order setting forth an agreed upon time schedule by which the acquiring entity would be required to make improvements required to resolve existing violations of federal and State safe drinking water and water pollution control statutes and regulations. The administrative consent order shall stipulate that the acquiring entity shall not be liable for any fines or penalties for continuing violations arising from the deficiencies, obsolescence or disrepair of the facilities at the time of the acquisition, provided that:
(1) the stipulation shall be conditioned upon compliance by the acquiring entity with the time frames established for improving the facilities and eliminating the existing violations; and
(2) the stipulation shall not include any violation to the extent caused by operational error, lack of preventive maintenance or careless or improper operation by the acquiring entity.
Under no circumstances shall the acquiring entity be liable for violations occurring prior to the acquisition.
At the conclusion of a hearing conducted pursuant to this section the record of the hearing shall be kept open for 30 days to allow for the submission of additional comments.
b. As used in sections 1 through 4 of P.L.1981, c.347 (C.58:11-59 through 58:11-62):
"Small water company" means any company, purveyor or entity, other than a governmental agency, that provides water for human consumption and which regularly serves less than 1,000 customer connections; and
"Small sewer company" means any company, business, or entity, other than a governmental agency, which is a public utility as defined pursuant to R.S.48:2-13, that collects, stores, conveys, or treats primarily domestic wastewater, and that regularly serves less than 1,000 customer connections.
(1) By agreement between the parties, subject to the approval of the Board of Public Utilities, in consultation with the Department of Environmental Protection, and after the holding of a joint public hearing by the board and the department; or
(2) Through use of the power of eminent domain by the appropriate agencies or, the provisions of section 34 of P.L.1957, c.183 (C.40:14B-34) to the contrary notwithstanding, the designated acquiring public or private entity.
b. Compensation shall be the commercially reasonable value as determined by agreement between the small water company, small sewer company, or both, and the designated acquiring public or private entity, as approved by the board and the department, or the appraised value as established through eminent domain proceedings. Upon remittance of the compensation as set forth herein, the designated acquiring public or private entity shall obtain title to the assets of the small water company, small sewer company, or both, free and clear of all liens, claims and encumbrances, judgments, security interests, fines, penalties, and outstanding taxes incurred by the small water company, small sewer company, or both. The acquiring public or private entity shall place in escrow or deposit in court so much of the compensation amount as necessary to satisfy any liens, claims and encumbrances, judgments, security interests, fines, penalties, and outstanding taxes which are of record or of which the designated acquiring public or private entity has actual knowledge.
Nothing contained herein shall waive, or impair the right of any creditor, including a secured creditor, to obtain payment directly from the owner or operator of the small water company or small sewer company from the proceeds of any acquisition concluded pursuant to the provisions of P.L.1981, c.347 (C.58:11-59 et seq.), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.).
No fines or penalties incurred by the owner or operator of a small water company or small sewer company shall be a liability of the owner or operator of the designated acquiring public or private entity, of the service users of the acquired small water company or small sewer company or any service user of the water supply or sewer system of the designated acquiring public or private entity. Any such incurred penalties shall remain the sole liability of the owner or operator who incurred the penalties.
c. If a small water company and a small sewer company serve a common residential development, were established by the developer to service that development, and are under common control and ownership, and if the small water company or the small sewer company, or both, have failed to comply with an order of the Department of Environmental Protection and are subject to the provisions of section 1 of P.L.1981, c.347 (C.58:11-59), they may be treated as one company for the purposes of sections 1 through 4 of P.L.1981, c.347 (C.58:11-59 through 58:11-62), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.), provided that the proceeds of the acquisition shall be segregated and distributed based on the commercially reasonable or appraised value of each company.
b. The Board of Public Utilities shall extend the franchise area of the designated acquiring public or private entity to the extent necessary to cover the service area of the small water company, small sewer company, or both, taken over pursuant to the provisions of P.L.1981, c.347 (C.58:11-59 et seq.), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.). The governing body of the municipality in which the small water company, small sewer company, or both, are located shall provide the board with the municipal consent that allows the designated acquiring public or private entity to operate within the franchise area. The board shall approve any municipal consent granted pursuant to this subsection necessary to cover the service area of the small water company, small sewer company, or both, acquired pursuant to the provisions of P.L.1981, c.347 (C.58:11-59 et seq.), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.).
c. An order issued pursuant to this section designating a public or private entity to acquire a small water company, small sewer company, or both, shall authorize the public or private entity to commence eminent domain proceedings in accordance with P.L.1971, c.361 (C.20:3-1 et seq.), without further petition to, or further order by, the board. Prior to commencing eminent domain proceedings, an appropriate officer of the designated acquiring public or private entity shall transmit notice to the board, the department, and all parties affected by the order issued pursuant to this section, including, without limitation, any person or entity having a recorded interest in the land or property which may be subject to eminent domain proceedings pursuant to the provisions of P.L.1981, c.347 (C.58:11-59 et seq.), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.). Notice provided to such parties pursuant to this section shall satisfy the notice requirements set forth in R.S.48:3-17.
d. An order issued pursuant to this section shall constitute revocation by the board of the franchise of the small water company, small sewer company, or both, to be acquired and shall render the owner or operator of the acquired small water company, small sewer company, or both, unfit to hold any other water or sewer franchise or municipal consent to provide water or sewer service.
As used in this section "small water company" and "small sewer company" shall have the same meaning as in section 1 of P.L.1981, c.347 (C.58:11-59).
b. Whenever a public or private entity receives an order pursuant to section 3 of P.L.1981, c.347 (C.58:11-61) to acquire a small water company, the cost to the designated acquiring public or private entity of the improvements to the acquired small water company necessary to assure the availability of water, the potability of water, and the provision thereof at adequate volume and pressure and compliance with all applicable federal and State safe drinking water requirements for a small water company, shall be eligible for financing pursuant to the "New Jersey Environmental Infrastructure Trust Act," P.L.1985, c.334 (C.58:11B-1 et seq.), as amended by P.L.1997, c.224. Any loan application made by an acquiring public entity pursuant to this subsection shall be expedited by the New Jersey Environmental Infrastructure Trust and the Department of Environmental Protection, to the maximum extent feasible while still maintaining compliance with all applicable laws, rules and regulations.
c. The provisions of any other law or rule or regulation adopted pursuant thereto to the contrary notwithstanding, improvements to an acquired small water company pursuant to the provisions of P.L.1981, c.347 (C.58:11-59 et seq.), section 1 of P.L.1981, c.389 (C.58:11-63) and P.L.1999, c.296 (C.58:11-63.1 et al.) shall constitute a water supply project for the purposes of P.L.1981, c.261, as amended by P.L.1983, c.355 and P.L.1997, c.223.
d. As used in this section "small water company" and "small sewer company" shall have the same meaning as in section 1 of P.L.1981, c.347 (C.58:11-59).
The exemption from liability granted to an acquiring public or private entity pursuant to this section shall not apply to the designated acquiring public or private entity's liability, pursuant to any law or rule or regulation, for arranging for the off-site disposal or treatment of a hazardous substance or for transporting and disposing of a hazardous substance at an off-site facility selected by the designated acquiring public or private entity.
Nothing in this section shall prohibit or limit the right of the Department of Environmental Protection to undertake a cleanup of the property or to obtain a lien on the property for the cost of a cleanup pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f). Any recovery of cleanup and removal costs from an acquiring public or private entity pursuant to a lien obtained by the Department of Environmental Protection shall be limited to the actual financial benefit realized by the designated acquiring public or private entity solely due to a cleanup or removal action. Recovery by the Department of Environmental Protection shall be conditioned upon the department providing a detailed financial analysis to the designated acquiring public or private entity demonstrating that the actual financial gain realized by the designated acquiring public or private entity is due solely to the cleanup or removal action. The acquiring entity shall have 30 days to notify the department, in writing, of any dispute relating to the financial analysis or the department's determination of actual financial gain. The Department of Environmental Protection shall negotiate, for a period not to exceed 30 days, with the designated acquiring public or private entity to resolve any dispute relating to the financial analysis or the department's determination of actual financial gain identified by the designated acquiring public or private entity prior to imposition of a lien. The department may waive any lien or recovery if warranted by the circumstances.
As used in this section "small water company" and "small sewer company" shall have the same meaning as in section 1 of P.L.1981, c.347 (C.58:11-59).
This act shall be known and may be cited as the "Water Supply and Wastewater Operators' Licensing Act."
As used in this act:
a. "Commissioner" means the Commissioner of the Department of Environmental Protection or his designated representative;
b. "Department" means the Department of Environmental Protection;
c. "Licensed operator" means a licensee approved by the department holding any local title, designation, or job description who is on the premises of a system a significant amount of time, although not necessarily full-time, and who is actively involved in and responsible for the operation, maintenance, and effectiveness of the system and who holds a valid license equal or superior to that required for the system;
d. "Licensee" means a person who possesses a valid license issued by the department pursuant to this act;
e. "Industrial wastewater treatment system" means any treatment works regulated by the department pursuant to the "Water Pollution Control Act," P.L.1977, c. 74 (C. 58:10A-1 et seq.);
f. "Operating requirements" means any and all provisions of permits or approvals, administrative orders, directives, or rules and regulations which the department may issue or adopt to insure the safe and efficient operations of systems, consistent with its statutory authority;
g. "Public wastewater collection system" means any collection system regulated by the department pursuant to the "Water Pollution Control Act," P.L. 1977, c. 74 (C. 58:10A-1 et seq.), and which system consists of structures which, operating alone or with other structures, result in the collection and conveyance or transmission of wastewater from private, commercial, institutional or industrial sources, to public wastewater treatment systems for subsequent treatment;
h. "Public wastewater treatment system" means any structure or structures by means of which domestic, or combined domestic and industrial liquid wastes or sewage are subjected to any process in order to remove or so alter constituents as to render the wastes less offensive or dangerous to the public health, safety, welfare, comfort, property or environment of any of the inhabitants of the State before the discharge of the resulting effluent either directly or indirectly into any of the waters of the State, and which is regulated by the department pursuant to the "Water Pollution Control Act," P.L. 1977, c. 74 (C. 58:10A-1 et seq.);
i. "Public water supply system" means a system comprising structures which operating alone or with other structures results in the derivation, conveyance or transmission or distribution of potable water for human consumption and domestic purposes;
j. "Public water treatment system" means any structure or structures by means of which prior to discharge into a public water supply system is subjected to the addition or abstraction of a substance or substances in order to enhance the safety, palatability, public health or aesthetic qualities, or reduce the corrosive or hazardous properties of the water used for potable or domestic purposes;
k. "System" means any industrial wastewater treatment system, public wastewater collection system, public wastewater treatment system, public water supply system or public water treatment system defined in this act; and
l. "Waters of the State" means the ocean and its estuaries, all springs, groundwater, streams or bodies of surface waters, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction.
a. Every system shall be operated and maintained by at least one licensed operator. Any person employed in the capacity of a licensed operator not holding the license required for a system may continue in such capacity, at the discretion of the department, if he meets the other requirements of this act and the rules and regulations adopted thereto.
b. The commissioner shall, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), adopt, and may amend or repeal rules and regulations to classify and reclassify licenses and systems.
c. The department shall upgrade or downgrade the classification of a system whenever the system changes sufficiently to place it in a different classification from the one in which it is classified.
d. If licenses are reclassified by the department, subject to new classification requirements, the licensee at the time of the reclassification shall be reissued, at the time of the next license renewal, the highest license corresponding to the new classification.
a. The department shall conduct examinations for licenses to operate systems to be held at least twice annually, by the persons and at the times and places it may appoint. The department shall determine the subject matter to be included in the examinations and the manner in which the examinations shall be conducted. Every applicant who has been admitted to an examination, and who has successfully passed the examination shall receive the license of the classification for which the examination was held.
b. The commissioner shall establish a board of examiners composed of licensed operators, and employees of the department, and any additional advisory bodies deemed necessary, to assist the department in administering the licensing program established pursuant to this act. The board of examiners shall annually review the programs and regulations adopted pursuant to this act and make recommendations to the department for their improvement.
c. The commissioner shall adopt, and may amend, or repeal rules and regulations establishing the board of examiners, and other advisory bodies, their composition and duties, and the qualifications for issuance of licenses, examination methods and procedures, and all other matters including fees necessary to implement and administer an adequate licensing program.
a. The commissioner is authorized to adopt a fee schedule which shall reasonably cover the cost of examinations, licensing procedures, and the administration and enforcement of this act. All fees collected pursuant to the provisions of this act shall be deposited into the "Environmental Services Fund" created by P.L. 1975, c. 232 (C. 13:1D-29 et seq.). There shall be annually appropriated an amount equivalent to the amount anticipated to be collected as fees by the department for the administration of the licensing program.
b. The department shall issue or renew a license upon payment of the appropriate license fee to any applicant who in the opinion of the department has satisfactorily met all the appropriate requirements of this act and rules and regulations adopted pursuant to this act.
c. The department shall renew licenses annually and shall establish in its regulations the date on which licenses shall be renewed. Initial licenses shall be valid from issue date to the next effective date for license renewal. All other licenses shall be valid from the renewal date of the license to the next annual renewal date. The department may change the renewal date for all licenses. The department may charge a delinquent fee to any licensee who fails to renew his license prior to the renewal date. A licensee who fails to renew his license within 1 year following the renewal date of his license may not receive a new license until he successfully completes another qualifying examination.
The department may issue licenses, without examination, for the operation of systems to such persons who, in the judgment of the department, meet all the requirements of this act and the rules and regulations adopted pursuant to this act and who hold valid current licenses to operate a system with at least the equivalent classification in a state, country or territory other than the State of New Jersey, which state, country or territory also recognizes the validity of New Jersey licenses, and which has requirements for the issuance of licenses to operate systems at least as stringent as the requirements of the State of New Jersey.
a. The department may revoke or suspend the license of a licensee if the department determines that the application for the license included false information or that the licensee is managing or operating the system in an incompetent manner, or is managing or operating the system in violation of this act or any operating requirements of the department, or has falsified records.
b. The order of revocation or suspension shall become a final order unless the licensee submits a written request for a hearing within 20 calendar days after receipt of the order. If a hearing is granted, the commissioner shall make the final decision for the department.
c. Any person whose license has been revoked for the first time shall be ineligible for admission to any examination authorized by this act for a period of not less than 1 year from the effective date of the revocation.
d. Any person whose license has been revoked for committing or omitting acts which the department determines with the concurrence of the board of examiners has caused substantial harm to the public, or whose license has been revoked more than once shall be ineligible for admission to any examination authorized by this act.
b. Any person who violates or causes the violation of any of the provisions of this act or any operating requirements shall be liable to a civil administrative penalty of not more than $5,000.00 for each offense to be imposed by the department pursuant to standards adopted in regulations, or a civil penalty of not more than $5,000.00 for each offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense.
c. The department may recover in any civil action the State's reasonable costs of preparing and litigating the civil action pursuant to this act.
d. Any and all penalties prescribed by any provisions of this act may be recovered in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce the penalty enforcement law.
e. The department is authorized and empowered to compromise and settle any penalty imposed under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.
f. All penalties received pursuant to the provisions of this act shall be paid into the "Environmental Services Fund" created by P.L.1975, c.232 (C.13:1D-29 et seq.), and expended for the functions authorized herein.
a. Nothing herein contained shall be held to abate or render invalid any administrative order or proceeding, or suit at law or in equity, which may have been served, begun or instituted by the department, prior to the date hereof, in accordance with the powers and duties heretofore conferred upon it, but the same shall continue in full force and effect, and be further advanced and prosecuted in the name of the department; nor shall anything in this act be construed to anywise affect the protection afforded any person by section 3 of this act.
b. Any regulations concerning the licensing of operators promulgated by the department pursuant to P.L. 1938, c. 206 (C. 58:11-18.1 et seq.) shall remain in effect up to 1 year subsequent to the effective date of this act unless repealed by the department at an earlier date.
The object and design of this act being the protection and preservation of the environment, and the protection and preservation of public health, safety, and welfare, this act shall be liberally construed and the powers granted and the duties imposed shall be construed to be independent and severable. If any one or more sections, clauses, sentences, or parts of this act shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, the judgment shall not affect, impair, or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.
This act shall be known, and may be cited, as the "Water Quality Planning Act."
a. The Legislature finds that the people of the State have a paramount interest in the restoration, maintenance and preservation of the quality of the waters of the State for the protection and preservation of public health and welfare, food supplies, public water supplies, propagation of fish and wildlife, agricultural and industrial uses, aesthetic satisfaction, recreation, and other beneficial uses; and that the severity of the water pollution problem in the State necessitates continuing water quality management planning in order to develop and implement water quality programs in concert with other social and economic objectives. The Legislature further finds that water quality is dependent upon factors of topography, hydrology, population concentration, industrial and commercial development, agricultural uses, transportation and other such factors which vary among and within watersheds and other regions of the State and that pollution abatement programs should consider these natural and man-made conditions that influence water quality. The Legislature further finds that the State's groundwaters are a precious and vulnerable resource.
b. The Legislature declares that the objective of this act is, wherever attainable, to restore and maintain the chemical, physical and biological integrity of the waters of the State, including groundwaters, and the public trust therein; and that areawide waste treatment management planning processes should be developed and implemented in order to achieve this objective and to assure adequate control of sources of water pollutants in the State. The Legislature further declares that wherever practicable and feasible waste treatment management planning areas shall be coterminous with county boundaries, and that wherever appropriate county governments shall perform such areawide waste treatment management planning; that the Department of Environmental Protection shall conduct areawide waste treatment management planning for all areas of the State without a designated planning agency, and that said Department of Environmental Protection shall establish a continuing planning process which will encourage, direct, supervise and aid areawide planning and which will also incorporate water quality management plans into a comprehensive and cohesive Statewide program directed toward the achievement of water quality objectives; that the Department of Environmental Protection through the continuing planning process and the planning agencies through the areawide planning process shall coordinate and integrate water quality management plans with related Federal, State, regional and local comprehensive land use, functional and other relevant planning activities, programs and policies; and that opportunities for meaningful public participation shall be provided during all phases of the water quality planning management process.
As used in this act, unless the context clearly requires a different meaning, the following words and terms shall have the following meanings:
a. "Areawide plan" means the areawide water quality management plan authorized in section 5 of this act;
b. "Commissioner" means the Commissioner of the Department of Environmental Protection.
c. "Continuing planning process" means the Statewide planning process conducted by the Department of Environmental Protection as authorized in section 7 of this act;
d. "Federal Act" means the "Federal Water Pollution Control Act Amendments of 1972" (Public Law 92-500; 33 U.S.C. 1251 et seq.).
e. "Planning agency" means a single representative organization capable of developing effective areawide waste treatment management plans for a designated or nondesignated planning area; and
f. "Planning area" means those areas designated or nondesignated herein or to be designated pursuant to section 4 of this act.
g. "Waters of the State" means the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State or subject to its jurisdiction.
a. The Governor may designate such areas as he may deem appropriate as areawide waste treatment management planning areas pursuant to the provisions of section 208 of the Federal Act. Said designation should to the maximum extent practicable conform to county boundaries, with appropriate modifications made to take account of the major watersheds, as for example by including the south branch of the Raritan in a Hunterdon county designation and the north branch of the Raritan in a Somerset county designation. The existing designation of certain planning areas is hereby confirmed. The Governor may also amend the boundaries contained in any of the designated or nondesignated planning areas at any time after the effective date of this act pursuant to the procedures required by the Federal Act after he reviews the existing boundaries of the counties, the sewerage treatment agencies and the river basins and subbasins located in that area. The Governor shall take whatever additional steps are required to implement this section.
b. The Governor shall designate, where practicable and appropriate and wherever the county conforms to the applicable requirements of the Federal Act or regulations promulgated pursuant thereto, the county board of chosen freeholders as the designated areawide planning agency in accordance with section 208 of the Federal Act. The existing designation of certain areawide planning agencies for certain planning areas is hereby confirmed.
Every designated planning agency and the Department of Environmental Protection for all areas of the State without a designated planning agency, shall conduct an areawide waste treatment management planning process and submit an areawide plan for that area to the Governor for adoption. Every county planning board may also conduct a countywide waste treatment management planning process and prepare a county water quality management plan, which plan shall be consistent with the areawide plan or plans provided for herein. The areawide plan shall be consistent with the Statewide continuing planning process and shall be in conformance with the rules and regulations promulgated by the commissioner pursuant to section 9 of this act. Each planning agency shall coordinate its work with every other planning agency with which it shares a river basin or sub-basin and shall refer any conflicts between itself and any such planning agency to the commissioner for his mediation. The areawide plan shall include, but not be limited to:
a. The identification of treatment works necessary to meet the anticipated municipal and industrial waste treatment needs of the area over a twenty-year period, annually updated, including an analysis of alternative waste treatment systems and any requirements for the acquisition of land for treatment purposes; the identification of the necessary waste water collection and urban storm water runoff systems; and the determination of a program to provide the necessary financial arrangements for the development of such treatment works;
b. The establishment of construction priorities for such treatment works and time schedules for the initiation and completion of all treatment works;
c. The establishment of a regulatory program:
(1) to provide control or treatment of all point and nonpoint sources of pollution, including in-place or accumulated pollution sources, to the extent practicable;
(2) to regulate the location, modification, and construction of any facilities within such area which may result in any discharge in such area, and
(3) to assure that any industrial or commercial wastes discharged into any treatment works in such area meet applicable pretreatment requirements;
d. The identification of those existing or required agencies or political subdivisions necessary to construct, operate and maintain all facilities required by the plan and otherwise necessary to carry out the plan;
e. The identification of the measures necessary to carry out the plan, including financing, the period of time necessary to carry out the plan, the costs of carrying out the plan within such time, and the economic, social, and environmental impact of carrying out the plan within such time;
f. A process: (1) to identify, if appropriate, agriculturally and silviculturally related nonpoint sources of pollution, including runoff from manure disposal areas and from land used for livestock and crop production; and (2) to set forth procedures and methods including land use requirements, to control to the extent feasible such sources;
g. A process: (1) to identify, if appropriate, mine-related sources of pollution including new, current, and abandoned surface and underground mine runoff; and (2) to set forth procedures and methods, including land use requirements to control to the extent feasible such sources;
h. A process: (1) to identify construction activity related sources of pollution; and (2) to set forth procedures and methods, including land use requirements, to control to the extent feasible such sources;
i. A process: (1) to identify, if appropriate, salt water intrusion into rivers, lakes, and estuaries resulting from reduction of fresh water flow from any cause, including irrigation, obstruction, ground water extraction, and diversion; and (2) to set forth procedures and methods to control such intrusion to the extent feasible where such procedures and methods are otherwise a part of the waste treatment management plan;
j. A process to control the disposition of all residual waste generated in such area which could affect water quality;
k. A process to control the disposal of pollutants on land or in subsurface excavations within such area to protect ground and surface water quality.
a. In every planning area in the State, the designated planning agency or the Department of Environmental Protection for all areas of the State without a designated planning agency, shall consult the concerned county planning board or boards and shall consider the advice of said county planning board or boards for the planning area, and shall prepare all appropriate reports, working papers, and plans in a manner which facilitates such consultation with said county planning board or boards.
b. To assist the areawide planning agency in formulating its plan, the agency shall appoint one or more policy and technical advisory councils, consisting of selected elective and appointive officials and members of the general public. The areawide plan shall be prepared by the areawide agency only after consultation with its policy or technical advisory council or councils.
The commissioner shall conduct a continuing planning process which shall:
a. Integrate and unify the statewide and areawide water quality management planning processes;
b. Conduct a statewide assessment of water quality and establish water quality goals and water quality standards for the waters of the State;
c. Develop a statewide implementation strategy to achieve the water quality standards, which shall include, but not be limited to:
(1) the determination of effluent limitations and schedules of compliance at least as stringent as those required by the Federal Act;
(2) the determination of the total maximum daily load for pollutants necessary to meet the water quality standards;
(3) the incorporation of all elements of any areawide waste management plan prepared pursuant to this act;
(4) an inventory and ranking of needs, in order of priority, for the construction of municipal waste treatment works needed to meet the water quality goals and standards;
(5) methods for controlling all residual wastes from any water treatment processing.
The commissioner may delegate aspects of the continuing planning process to other State, Federal, interstate or local agencies. The commissioner shall coordinate and integrate the continuing planning process with related Federal, State, regional and local comprehensive, functional and other relevant planning activities, programs and policies.
The Department of Environmental Protection and all areawide waste treatment management planning agencies shall establish a comprehensive public participation program directed towards informing the public and involving it in the water quality management planning process. Opportunities for meaningful public participation shall be provided during determination of planning goals, plan development, review, and adoption in accordance with the policy of this act and all applicable requirements of law.
The commissioner may, pursuant to the "Administrative Procedures Act" P.L.1968, c. 410 (C. 52:14B-1 et seq.), adopt rules and regulations for the preparation and adoption of areawide plans by the areawide planning agencies and in order to effectuate the purposes of this act.
All projects and activities affecting water quality in any planning area shall be developed and conducted in a manner consistent with the adopted areawide plan. The commissioner shall not make any grant for construction of a publicly owned treatment works to any agency not identified as the necessary agency to construct said facilities pursuant to any adopted areawide plan. The commissioner shall not grant any permit which is in conflict with an adopted areawide plan.
This act shall be liberally construed. If any one or more sections, clauses, sentences, or parts of this act shall for any reason be questioned in any court, and shall be judged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.
As used in this act, "aquifer recharge area" means an area which may be composed of sand or gravel, may be located at points of substantial fracturing in geological formations, may extend to the ground surface in certain locations, and which transmits water to an aquifer under the influence of vertical head differentials and refills or "recharges" primarily by infiltration of precipitation through the ground surface.
The Department of Environmental Protection, within two years of the effective date of this act, shall prepare and publish a methodology which shall allow the user to define, rank and map aquifer recharge areas. In conjunction with this methodology, the department shall prepare and publish model land use regulations or best management practices designed to encourage ecologically sound development in aquifer recharge areas and to restrict therein those activities known to cause groundwater contamination.
The Department of Environmental Protection, within four years of the effective date of this act, shall prepare and publish a map of the aquifer recharge areas in the State, using, to the greatest extent possible, the revised State geologic map (scale 1:100,000), and any local and regional mapping efforts already completed or underway which the department shall verify. Periodically thereafter, as appropriate, the department shall update these maps.
The map of aquifer recharge areas prepared pursuant to section 3 of this act and the suggested land use regulations prepared pursuant to section 2 of this act are to be used solely at the discretion of a municipality; and are to be considered guidance as to how orderly development may proceed in conjunction with the sound protection and management of groundwater quality.
The department shall adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), any rules and regulations necessary to implement the provisions of this act.
b. The Legislature finds that stormwater runoff and combined sewer overflows are among the major sources of ocean pollution, contributing to beach closings; that combined sewer systems discharge untreated wastewater and stormwater into rivers, streams and coastal waters during wet weather, resulting in water pollution; that some combined sewer systems have deteriorated to the point that overflows occur regularly, even during dry weather; that many sewer systems are on inadequate repair and replacement programs, which may cause disturbances at sewage treatment plants; that many municipalities are under building moratoriums due to the inadequacy of their sewage and stormwater collection systems, which severely affect municipal budgets; and that large unmet capital expenses exist for combined sewer system separation and abatement projects.
The Legislature further finds that funding at the federal level for wastewater treatment, stormwater management and combined sewer system rehabilitation projects is insufficient; that State funds available for these projects are inadequate to meet current needs; that local revenues are insufficient to meet these expenses; and that additional funding at the State level is necessary to meet this financial obligation.
c. The Legislature finds that construction, rehabilitation, operation and maintenance of modern and efficient water supply facilities are essential to protecting and improving the State's water quality; that the citizens of this State, in recognition of the crucial role the construction of new and the upgrading of existing water supply facilities play in maintaining and augmenting the natural water resources of the State, and with an understanding that the cost of financing and constructing these systems is beyond the limited financial resource capabilities of local governments and authorities and must be subsidized by the State and repaid through a system of water supply user charges, approved the enactment of the "Water Supply Bond Act of 1981" (P.L.1981, c.261); that the water supply needs of the State are so great that the funds allocated for this purpose from the "Water Supply Fund" established by that 1981 bond act should be augmented and maximized, to the extent practicable, through the use of alternative methods of State financing to offset the costs of water supply projects and for the construction of new or the rehabilitation of antiquated or inadequate existing water supply facilities; that the United States Congress in recognition of the essential role that safe drinking water plays in protecting the public health, and with an understanding that financing, constructing and maintaining water systems that meet the requirements of the "Safe Drinking Water Act," 42 U.S.C. s.300f et seq. exceed the financial and technical capacity of the operators of some water systems, has established in the "Safe Drinking Water Act Amendments of 1996," P.L.104-182, a program to provide public water systems with financial assistance to meet national primary drinking water regulations or to otherwise further the health protection objectives of the federal law and that the State must, in order to make use of the federal funds, provide State funds for the program; and therefore, State funding for the program is necessary to meet this financial obligation.
d. The Legislature finds that the transportation infrastructure of the State is among the most heavily used in the nation and has deteriorated in recent years, with parts of the highway system reaching the end of their useful lives.
e. The Legislature finds that capital projects for roadways and bridges are essential to protecting and improving the State's transportation system; that construction of new and the upgrading of existing roadways and bridges play a critical role in the transportation needs of the State, and with an understanding that the cost of financing and constructing these systems is beyond the limited financial resource capabilities of local governments and authorities and must be subsidized by the State and Federal government; that the United States Congress has established "State Infrastructure Bank" programs to provide funding for transportation systems (23 U.S.C. s.610) and that the State must, in order to make use of the federal funds, provide State funds for the program; and therefore, State funding for the program is necessary to meet this financial obligation.
f. The Legislature therefore determines that it is in the public interest to establish a State authority authorized to issue bonds, notes and other obligations and to establish any reserve funds necessary therefor, and to make loans to and guarantee debt incurred by local government units for environmental and transportation infrastructure projects.
"Aviation project" means a project to develop or improve county or municipal airport facilities, or airport facilities owned or operated by a regional transportation authority that is not a bi-state authority, and related infrastructure or capital equipment, including, but not limited to, any design, planning, acquisition, construction, reconstruction, relocation, installation, removal, repair, or rehabilitation project that facilitates, increases the efficiency of, or improves the capacity for inter-modal trade for commercial and industrial facilities that are part of airport facilities. "Aviation project" includes, but is not limited to, any project to develop or improve terminal facilities designed for public use and for the transportation of persons or property, such as airports, runways, berms, basins, storage places, sheds, warehouses, and related infrastructure;
"Bonds" means bonds issued by the trust pursuant to P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.);
"Combined sewer overflow" means the discharge of untreated or partially treated stormwater runoff and wastewater from a combined sewer system into a body of water;
"Combined sewer system" means a sewer system designed to carry sanitary wastewater at all times, which is also designed to collect and transport stormwater runoff from streets and other sources, thereby serving a combined purpose;
"Commissioner" means the Commissioner of the Department of Environmental Protection;
"Cost" means the cost of all labor, materials, machinery and equipment, lands, property, rights and easements, financing charges, interest on bonds, notes or other obligations, plans and specifications, surveys or estimates of costs and revenues, engineering and legal services, and all other expenses necessary or incident to all or part of an environmental infrastructure project;
"Department" means the Department of Environmental Protection;
"Environmental infrastructure project" means the acquisition, construction, improvement, repair or reconstruction of all or part of any structure, facility or equipment, or real or personal property necessary for or ancillary to any: (1) wastewater treatment system project, including any stormwater management or combined sewer overflow abatement projects; or (2) water supply project, as authorized pursuant to P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.), including any water resources project, as authorized pursuant to P.L.2003, c.162;
"Federal infrastructure bank program" means the United States Department of Transportation State Infrastructure Bank Program provided for in section 350 of Pub.L.104-59 and Pub.L.102-240 as amended or superseded;
"Local government unit" means (1) a State authority, county, municipality, municipal, county or regional sewerage or utility authority, municipal sewerage district, joint meeting, improvement authority, or any other political subdivision of the State authorized to construct, operate, and maintain wastewater treatment systems; (2) a State authority, district water supply commission, county, municipality, municipal, county or regional utilities authority, municipal water district, joint meeting, or any other political subdivision of the State authorized pursuant to law to operate or maintain a public water supply system or to construct, rehabilitate, operate, or maintain water supply facilities or otherwise provide water for human consumption; (3) a county, municipality, municipal, county or regional transportation authority, or any other political subdivision of the State authorized to construct, operate, or maintain public highways or transportation projects; (4) a county, municipality, or other political subdivision or instrumentality of the State, or a municipal, county, or State authority that is not a bi-state authority, authorized to construct, operate, or maintain ports or marine projects; (5) a county, municipality, municipal or regional transportation authority, or other political subdivision or instrumentality of the State authorized to construct, operate, or maintain airports or aviation projects; or (6) a local government unit as defined in section 2 of P.L.2023, c.63 (C.58:11B-20.4) authorized to receive funds pursuant to the "Safeguarding Tomorrow Through Ongoing Risk Mitigation (STORM) Act," Pub.L. 116-284 (42 U.S.C. s.5135), as amended or supplemented, and P.L.2023, c.63 (C.58:11B-20.3 et al.);
"Marine project" means a project to develop or improve public port or terminal facilities, and related infrastructure or capital equipment, including, but not limited to, any design, planning, acquisition, construction, reconstruction, relocation, installation, removal, repair, or rehabilitation project that facilitates, increases the efficiency of, or improves the capacity for inter-modal trade and cargo movement for commercial or industrial facilities that are part of port or terminal facilities. "Marine project" includes, but is not limited to, dredging, soil hardening, and paving of the port facilities, and ferry terminal facilities designed for public use and the transportation of persons or property such as water craft, docks, wharves, piers, slips, storage places, sheds, warehouses, and related infrastructure. "Marine project" shall not include any project that relates to or supports recreational or commercial boating activities;
"New Jersey Environmental Infrastructure Financing Program" means the financing program to fund environmental infrastructure projects;
"New Jersey Transportation Infrastructure Financing Program" means the financing program to fund transportation projects, aviation projects, and marine projects;
"Notes" means notes issued by the trust pursuant to P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
"Onsite wastewater treatment and disposal system" means an onsite system designed to treat and dispose of domestic sewage;
"Other assistance" means forms of financial assistance, in addition to loans, authorized by the New Jersey Infrastructure Bank from the State Transportation Infrastructure Bank Fund, the wastewater treatment system general loan fund, the water supply facilities general loan fund, or the Community Hazard Assistance Mitigation Program Revolving Loan Fund established pursuant to section 3 of P.L.2023, c.63 (C.58:11B-10.6), including, but not limited to, use of funds to: provide credit enhancements, serve as a capital reserve for bond or other debt instrument financing, subsidize interest rates, ensure the issuance of letters of credit and credit instruments, finance purchase and lease agreements with respect to transit projects, and provide bond or other debt financing instrument security;
"Planning, design, and construction loan" means a short-term or temporary loan for eligible costs incurred in project planning, engineering design, or construction issued before or during the planning stage of a project;
"Project" means the acquisition, construction, improvement, repair or reconstruction of all or part of any structure, facility, or equipment, or real or personal property necessary for or ancillary to any: (1) wastewater treatment system project, including any stormwater management or combined sewer overflow abatement projects; (2) water supply project, as authorized pursuant to P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.), including any water resources project, as authorized pursuant to P.L.2003, c.162; or (3) transportation project, aviation project, or marine project authorized pursuant to sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
"Public highway" means public roads, streets, expressways, freeways, parkways, motorways and boulevards, including bridges, tunnels, overpasses, underpasses, interchanges, express bus roadways, bus pullouts and turnarounds, park-ride facilities, traffic circles, grade separations, traffic control devices, the elimination or improvement of crossings of railroads and highways, whether at-grade or not at-grade, bicycle and pedestrian pathways and pedestrian and bicycle bridges, and any property, rights of way, easements and interests therein needed for the construction, improvement, and maintenance of highways;
"Public water utility" means any investor-owned water company or small water company;
"Small water company" means any company, purveyor, or entity, other than a governmental agency, that provides water for human consumption and which regularly serves less than 1,000 customer connections, including nonprofit, noncommunity water systems owned or operated by a nonprofit group or organization;
"Stormwater management system" means any equipment, plants, structures, machinery, apparatus, management practices, or land, or any combination thereof, acquired, used, constructed, implemented, or operated to prevent nonpoint source pollution, abate improper cross-connections and interconnections between stormwater and sewer systems, minimize stormwater runoff, reduce soil erosion, or induce groundwater recharge, or any combination thereof;
"Transportation project" means a capital project for public highways, approach roadways, and other necessary land-side improvements, ramps, signal systems, roadbeds, transit lanes or rights of way, related transmission and distribution lines, pedestrian walkways and bridges connecting to passenger stations and servicing facilities, bridges, and grade crossings;
"Trust" means the New Jersey Infrastructure Bank created pursuant to section 4 of P.L.1985, c.334 (C.58:11B-4);
"Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewage, septage, stormwater runoff, or any combination thereof, or other liquid residue discharged or collected into a sewer system or stormwater management system, or any combination thereof;
"Wastewater treatment system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed or operated by, or on behalf of, a local government unit for the storage, collection, reduction, recycling, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the collection or treatment, or both, of stormwater runoff and wastewater, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, treatment plants and works, connections, outfall sewers, interceptors, trunk lines, stormwater management systems, and other personal property and appurtenances necessary for their use or operation; "wastewater treatment system" shall include a stormwater management system or a combined sewer system;
"Wastewater treatment system project" means any work relating to the acquisition, construction, improvement, repair or reconstruction of all or part of any structure, facility or equipment, or real or personal property necessary for or ancillary to any wastewater treatment system that meets the requirements set forth in sections 20, 21, and 22 of P.L.1985, c.334 (C.58:11B-20, C.58:11B-21, and C.58:11B-22); or any work relating to any of the stormwater management or combined sewer overflow abatement projects identified in the stormwater management and combined sewer overflow abatement project priority list adopted by the commissioner pursuant to section 28 of P.L.1989, c.181; or any work relating to the purposes set forth in section 6 of P.L.2003, c.162; or any work relating to any other project eligible for financing under the "Federal Water Pollution Control Act Amendments of 1972" (33 U.S.C. s.1251 et seq.), or any amendatory or supplementary acts thereto;
"Water resources project" means any work related to transferring water between public water systems during a state of water emergency, to avert a drought emergency in all or any part of the State, to plan, design or construct interconnections of existing water supplies, or to extend water supplies to areas with contaminated ground water supplies;
"Water supply facilities" means and refers to the real property and the plants, structures, interconnections between existing water supply facilities, machinery and equipment and other property, real, personal and mixed, acquired, constructed or operated, or to be acquired, constructed or operated, in whole or in part, by or on behalf of a public water utility, or by or on behalf of the State or a local government unit, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, or of conserving existing water resources, and any and all appurtenances necessary, useful or convenient for the collecting, impounding, storing, improving, treating, filtering, conserving or transmitting of water, and for the preservation and protection of these resources and facilities, whether in public or private ownership, and providing for the conservation and development of future water supply resources, and facilitating incidental recreational uses thereof;
"Water supply project" means any work relating to the acquisition, construction, improvement, repair or reconstruction of all or part of any structure, facility or equipment, or real or personal property necessary for or ancillary to water supply facilities that meets the requirements set forth in sections 24, 25, and 26 of P.L.1997, c.224 (C.58:11B-20.1, C.58:11B-21.1, and C.58:11B-22.1); or any work relating to the purposes set forth in section 4 of P.L.1981, c.261; or any work relating to the purposes set forth in section 6 of P.L.2003, c.162; or any work relating to any other project eligible for funding pursuant to the federal "Safe Drinking Water Act Amendments of 1996," Pub.L.104-182, and any amendatory and supplementary acts thereto.
b. The trust shall consist of a 10 member board of directors composed of the State Treasurer, the Commissioner of the Department of Community Affairs, the Commissioner of the Department of Transportation, and the Commissioner of the Department of Environmental Protection, who shall be members ex officio; two people appointed by the Governor upon the recommendation of the President of the Senate, and two people appointed by the Governor upon the recommendation of the Speaker of the General Assembly, who shall serve during the two-year legislative term in which they are appointed; and two residents of the State appointed by the Governor with the advice and consent of the Senate, who shall serve for terms of four years, except that the first two appointed shall serve terms of two and three years respectively. Each appointed director shall serve until that director's successor has been appointed and qualified. A director is eligible for reappointment. Any vacancy shall be filled in the same manner as the original appointment, but for the unexpired term only.
With respect to those public members first appointed by the Governor, the appointment of each of the two members upon the advice and consent of the Senate shall become effective 30 days after their nomination by the Governor if the Senate has not given advice and consent on those nominations within that time period; the President of the Senate and the Speaker of the General Assembly each shall recommend to the Governor a public member for appointment within 20 days following the effective date of P.L.1985, c.334 (C.58:11B-1 et seq.) and a public member for appointment within 20 days following the effective date of P.L.2016, c.56 and a recommendation made in this manner shall become effective if the Governor makes the appointment in accordance with the recommendation, in writing, within 10 days of the Governor's receipt thereof. In each instance where the Governor fails to make the appointment, the President of the Senate and the Speaker of the General Assembly shall make new recommendations subject to appointment by the Governor as determined in this section.
c. Each appointed director may be removed from office by the Governor for cause, upon the Governor's consideration of the findings and recommendations of an administrative law judge after a public hearing before the judge, and may be suspended by the Governor pending the completion of the hearing. Each director, before entering upon the director's duties, shall take and subscribe an oath to perform the duties of the director's office faithfully, impartially and justly to the best of the director's ability. A record of oaths shall be filed in the office of the Secretary of State.
d. The Governor shall designate one of the appointed members to be the chairperson and chief executive officer of the trust and the directors shall biannually elect a vice-chairperson from among the appointed directors. The chairperson shall serve as such for a term of two years and until a successor has been designated. A chairperson shall be eligible for one additional two-year term as chairperson. The directors shall elect a secretary and treasurer, who need not be directors, and the same person may be elected to serve as both secretary and treasurer.
The powers of the trust are vested in the directors in office from time to time and six directors shall constitute a quorum at any meeting. Action may be taken and motions and resolutions adopted by the trust by the affirmative majority vote of those directors present, but in no event shall any action be taken or motions or resolutions adopted without the affirmative vote of at least six directors. No vacancy on the board of directors of the trust shall impair the right of a quorum of the directors to exercise the powers and perform the duties of the trust.
e. Each director and the treasurer of the trust shall execute a bond to be conditioned upon the faithful performance of the duties of the director or treasurer in a form and amount as may be prescribed by the State Treasurer. Bonds shall be filed in the office of the Secretary of State. At all times thereafter, the directors and treasurer shall maintain these bonds in full effect. All costs of the bonds shall be borne by the trust.
f. The directors of the trust shall serve without compensation, but the trust shall reimburse the directors for actual and necessary expenses incurred in the performance of their duties. Notwithstanding the provisions of any other law to the contrary, no officer or employee of the State shall be deemed to have forfeited or shall forfeit the officer's or employee's office or employment or any benefits or emoluments thereof by reason of the officer's or employee's acceptance of the office of ex officio director of the trust or the ex officio director's services thereon.
g. Each ex officio director may designate an officer of the ex officio director's department to represent the ex officio director at meetings of the trust. Each designee may lawfully vote and otherwise act on behalf of the director for whom the person constitutes the designee. The designation shall be delivered in writing to the trust and shall continue in effect until revoked or amended in writing and delivered to the trust.
h. The trust may be dissolved by law; provided the trust has no debts or obligations outstanding or that provision has been made for the payment or retirement of these debts or obligations. The trust shall continue in existence until dissolved by act of the Legislature. Upon any dissolution of the trust, all property, funds and assets of the trust shall be vested in the State.
i. A true copy of the minutes of every meeting of the trust shall be forthwith delivered by and under the certification of the secretary thereof to the Governor and at the same time to the Senate and General Assembly. The time and act of this delivery shall be duly recorded on a delivery receipt. No action taken or motion or resolution adopted at a meeting by the trust shall have effect until 10 days, exclusive of Saturdays, Sundays and public holidays, after a copy of the minutes has been delivered to the Governor, unless during the 10-day period the Governor shall approve all or part of the actions taken or motions or resolutions adopted, in which case the action or motion or resolution shall become effective upon the approval.
If, in the 10-day period, the Governor returns the copy of the minutes with a veto of any action taken by the trust or any member thereof at that meeting, the action shall be of no effect. The Senate or General Assembly shall have the right to provide written comments concerning the minutes to the Governor within the 10-day period, which comments shall be returned to the trust by the Governor with the Governor's approval or veto of the minutes.
The powers conferred in this subsection upon the Governor shall be exercised with due regard for the rights of the holders of bonds, notes and other obligations of the trust at any time outstanding, and nothing in, or done pursuant to, this subsection shall in any way limit, restrict or alter the obligation or powers of the trust or any representative or officer of the trust to carry out and perform each covenant, agreement, or contract made or entered into by or on behalf of the trust with respect to its bonds, notes, or other obligations or for the benefit, protection or security of the holders thereof.
j. No resolution or other action of the trust providing for the issuance of bonds, refunding bonds, notes or other obligations shall be adopted or otherwise made effective by the trust without the prior approval in writing of the Governor and the State Treasurer. The trust shall provide the Senate and General Assembly with written notice of any request for approval of the Governor and State Treasurer at the time the request is made, and shall also provide the Senate and General Assembly written notice of the response of the Governor and State Treasurer at the time that the response is received by the trust.
a. Make and alter bylaws for its organization and internal management and, subject to agreements with holders of its bonds, notes or other obligations, make rules and regulations with respect to its operations, properties and facilities;
b. Adopt an official seal and alter it;
c. Sue and be sued;
d. Make and enter into all contracts, leases and agreements necessary or incidental to the performance of its duties and the exercise of its powers under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and subject to any agreement with the holders of the trust's bonds, notes or other obligations, consent to any modification, amendment or revision of any contract, lease or agreement to which the trust is a party;
e. Enter into agreements or other transactions with and accept, subject to the provisions of section 23 of P.L.1985, c.334 (C.58:11B-23), grants, appropriations and the cooperation of the State, or any State agency, in furtherance of the purposes of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and do anything necessary in order to avail itself of that aid and cooperation;
f. Receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied to carry out the purposes of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), subject to the conditions upon which that aid and those contributions may be made, including, but not limited to, gifts or grants from any department or agency of the State, or any State agency, for any purpose consistent with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), subject to the provisions of section 23 of P.L.1985, c.334 (C.58:11B-23);
g. Acquire, own, hold, construct, improve, rehabilitate, renovate, operate, maintain, sell, assign, exchange, lease, mortgage or otherwise dispose of real and personal property, or any interest therein, in the exercise of its powers and the performance of its duties under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
h. Appoint and employ an executive director and any other officers or employees as it may require for the performance of its duties, without regard to the provisions of Title 11A of the New Jersey Statutes;
i. Borrow money and issue bonds, notes and other obligations, and secure the same, and provide for the rights of the holders thereof as provided in the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
j. Subject to any agreement with holders of its bonds, notes or other obligations, invest moneys of the trust not required for immediate use, including proceeds from the sale of any bonds, notes or other obligations, in any obligations, securities and other investments in accordance with the rules and regulations of the State Investment Council or as may otherwise be approved by the Director of the Division of Investment in the Department of the Treasury upon a finding that such investments are consistent with the corporate purposes of the trust;
k. Procure insurance to secure the payment of its bonds, notes or other obligations or the payment of any guarantees or loans made by it in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), or against any loss in connection with its property and other assets and operations, in any amounts and from any insurers as it deems desirable;
l. Engage the services of attorneys, accountants, engineers, and financial experts and any other advisors, consultants, experts and agents as may be necessary in its judgment and fix their compensation;
m. (1) Make and contract to make loans and provide other assistance to local government units, or to a local government unit on behalf of another local government unit, to finance the cost of wastewater treatment system projects or water supply projects and acquire and contract to acquire notes, bonds or other obligations issued or to be issued by any local government units to evidence the loans, all in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.);
(2) Make and contract to make loans and provide other assistance to public water utilities, or to any other person or local government unit on behalf of a public water utility, to finance the cost of water supply projects in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.);
(3) Make and contract to make loans and provide other assistance to private persons other than local government units, or to any other person or local government unit on behalf of a private person, to finance the cost of onsite wastewater treatment and disposal systems or stormwater management systems in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.);
(4) Make and contract to make loans and provide other assistance to one or more local government units or consortia thereof to finance the cost of transportation projects, aviation projects, and marine projects in accordance with applicable provisions of the federal infrastructure bank program and pursuant to sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
n. Subject to any agreement with holders of its bonds, notes or other obligations, purchase bonds, notes and other obligations of the trust and (1) hold the same for resale for any duration, including until maturity thereof, including in connection with any cross-investment initiative of the trust, or (2) provide for the cancellation thereof, all in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
o. (1) Charge to and collect from local government units, private persons, public water utilities, or nonprofit organizations any fees and charges in connection with the trust's loans, guarantees or other services, including, but not limited to, fees and charges sufficient to reimburse the trust for all reasonable costs necessarily incurred by it in connection with its financings and the establishment and maintenance of reserve or other funds, as the trust may determine to be reasonable. The fees and charges shall be in accordance with a uniform schedule published by the trust for the purpose of providing actual cost reimbursement for the services rendered;
(2) Any fees and charges collected by the trust pursuant to this subsection may be deposited and maintained in a special fund separate from any other funds held by the trust pursuant to section 10 of P.L.1985, c.334 (C.58:11B-10) or section 23 of P.L.1997, c.224 (C.58:11B-10.1), and shall be available for any corporate purposes of the trust;
p. Subject to any agreement with holders of its bonds, notes or other obligations, obtain as security or to provide liquidity for payment of all or any part of the principal of and interest and premium on the bonds, notes and other obligations of the trust or for the purchase upon tender or otherwise of the bonds, notes or other obligations, lines of credit, letters of credit and other security agreements or instruments in any amounts and upon any terms as the trust may determine, and pay any fees and expenses required in connection therewith;
q. Provide to local government units any financial and credit advice, and any form of technical assistance, as these local government units may request;
r. Make payments to the State from any moneys of the trust available therefor as may be required pursuant to any agreement with the State or act appropriating moneys to the trust; and
s. Take any action necessary or convenient to the exercise of the foregoing powers or reasonably implied therefrom.
b. Except as otherwise provided in sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.), the Community Hazard Assistance Mitigation Program shall comply with all provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), unless such provision is specifically related to environmental infrastructure or transportation projects as defined in section 3 of P.L.1985, c.334 (C.58:11B-3).
In establishing this program and issuing bonds pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.), the bank shall have the same powers and duties set forth in the "New Jersey Infrastructure Trust Act," P.L.1985, c.334 (C.58:11B-1 et seq.). The bank shall borrow money and issue bonds, notes, and other obligations, and secure the same, and provide for the rights of the holders thereof in the same manner as provided pursuant to P.L.1985, c.334 (C.58:11B-1 et seq.). Each loan to a local government unit or any other person shall be evidenced by notes, bonds, or other obligations thereof issued to the trust. In the case of a local government unit, a note or bond to be issued to the trust by the local government unit (1) shall be authorized and issued as provided by law for the issuance of notes and bonds by the local government unit, (2) notwithstanding any provisions of the "Local Authorities Fiscal Control Law," P.L.1983, c.313 (C.40A:5A-1 et seq.) to the contrary, shall be approved by the Director of the Division of Local Government Services in the Department of Community Affairs, and (3) notwithstanding the provisions of N.J.S.40A:2-27, N.J.S.40A:2-28 and N.J.S.40A:2-29 or any other provisions of law to the contrary, may be sold at private sale to the trust or the State, as the case may be, at any price, whether or not less than par value, and shall be subject to redemption prior to maturity at any time and at any price as the trust and the local government unit may agree.
c. The bank shall make and contract to make loans and provide other assistance to State entities, local government units, and nonprofit organizations to finance the cost of hazard mitigation and resilience projects in accordance with the provisions of the STORM Act and sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.) and acquire and contract to acquire notes, bonds or other obligations issued or to be issued by any local government units to evidence the loans, all in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.). The loans shall be made subject to those terms and conditions as the bank shall determine to be consistent with the purposes of the STORM Act and sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.). Except for short-term or temporary loans, each loan by the bank and the terms and conditions thereof shall be subject to approval by the State Treasurer, and the bank shall make available to the State Treasurer all information, statistical data, and reports of independent consultants or experts as the State Treasurer shall deem necessary in order to evaluate the loan.
b. A local government unit that is awarded a grant for all or part of the costs of an environmental infrastructure project shall not be required to submit a request for a financing cost estimate pursuant to this section if the local government unit is seeking to finance less than $1,000,000 of the remaining costs of that project or project component.
c. A local government unit shall not be required to submit a request for a financing cost estimate pursuant to this section for an environmental infrastructure project the appropriation of which was approved either by ordinance of a municipality or by resolution of an authority or county, as appropriate, prior to or on the effective date of this section.
b. The trust may require the local government unit to provide information concerning the project and the borrower needed to generate a financing cost estimate, including, but not limited to, a detailed description of the project, design, engineering and environmental information, a cost estimate prepared by the project engineer or other qualified person, information regarding the borrower, the amount to be financed, and any other information the trust deems relevant in order for the cost estimate to be as accurate as possible.
The trust, in conjunction with the Department of Environmental Protection, shall provide with the financing cost estimate:
(1) a description of the priority system used by the Department of Environmental Protection in awarding financing under the program; and
(2) a comparison of the estimates of the cost of issuance and underwriting fees, servicing fees, and interest costs for a project financed through the trust versus a project financed independently by the local government unit through its own bond process.
c. The trust, through its web site, shall make available online a form that may be completed by the local government unit for submission to the trust in order for the trust to make an estimate of financing costs for the project. Upon submission of the completed form, the trust shall, within 5 days thereafter, provide an estimate of the financing costs and possible interest rate that may be made available for the project.
b. Whether or not the bonds, notes or other obligations of the trust are of a form and character as to be negotiable instruments under the terms of Title 12A of the New Jersey Statutes, the bonds, notes and other obligations are made negotiable instruments within the meaning of and for the purposes of Title 12A of the New Jersey Statutes, subject only to the provisions of the bonds, notes and other obligations for registration.
c. Bonds, notes or other obligations of the trust shall be authorized by a resolution or resolutions of the trust and may be issued in one or more series and shall bear any date or dates, mature at any time or times, bear interest at any rate or rates of interest per annum, be in any denomination or denominations, be in any form, either coupon, registered or book entry, carry any conversion or registration privileges, have any rank or priority, be executed in any manner, be payable in any coin or currency of the United States which at the time of payment is legal tender for the payment of public and private debts, at any place or places within or without the State, and be subject to any terms of redemption by the trust or the holders thereof, with or without premium, as the resolution or resolutions may provide. A resolution of the trust authorizing the issuance of bonds, notes or other obligations may provide that the bonds, notes or other obligations be secured by a trust indenture between the trust and a trustee, vesting in the trustee any property, rights, powers and duties in trust consistent with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) as the trust may determine.
d. Bonds, notes or other obligations of the trust may be sold at any price or prices and in any manner as the trust may determine. Notwithstanding any provisions of the "Local Bond Law," N.J.S.40A:2-1 et seq., to the contrary, each bond, note, or other obligation of the trust, and each bond, note, or other obligation of a local government unit, public water utility, or other person, issued to the trust to evidence the loan issued to the trust, or, if applicable, issued to the State, acting by and through the Department of Environmental Protection, to evidence a loan issued thereby, pursuant to subsection a. of section 9 of P.L.1985, c.334 (C.58:11B-9), shall mature and be paid not later than 30 years for environmental infrastructure projects, 45 years for combined sewer overflow projects, 31 years for transportation projects, aviation projects, and marine projects, and 30 years for hazard mitigation and resilience projects pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.), from the effective date thereof, or the certified useful life of the project or projects to be financed by the bonds, notes, or other obligations, whichever is less, or a shorter period of time as may be applicable to any companion loan made concurrently with the loan made by the trust and issued pursuant to federal law or regulation.
Notwithstanding the provisions of the "Local Bond Law," N.J.S.40A:2-1 et seq., or this subsection, to the contrary, each bond, note, or other obligation of the trust, and each bond, note, or other obligation of a local government unit, public water utility, or other person, issued to the trust to evidence the loan issued to the trust, or, if applicable, issued to the State, acting by and through the Department of Environmental Protection, to evidence a loan issued thereby, pursuant to subsection a. of section 9 of P.L.1985, c.334 (C.58:11B-9), and issued in connection with funding provided pursuant to the "Water Infrastructure Finance and Innovation Act of 2014" (WIFIA), 33 U.S.C. s.3901 et seq., as amended and supplemented, the "Transportation Infrastructure Finance and Innovation Act of 1998" (TIFIA), 23 U.S.C. s.601 et seq., as amended and supplemented, or the "Safeguarding Tomorrow Through Ongoing Risk Mitigation (STORM) Act," Pub.L. 116-284 (42 U.S.C. s.5135), as amended or supplemented, shall mature and be paid not later than the maximum time period allowed by those federal acts.
All bonds of the trust shall be sold at public or private sale at the price or prices and in the manner as the trust shall determine, either on a negotiated or on a competitive basis. If competitively sold, bonds shall be sold after notice of sale, a summary of which shall be published at least once in at least three newspapers published in the State of New Jersey and at least once in a publication carrying municipal bond notices and devoted primarily to financial news published in New Jersey or the city of New York, the first summary notice to be at least five days prior to the day of bidding. The notice of sale may contain a provision to the effect that any or all bids made in pursuance thereof may be rejected. In the event of such rejection or of failure to receive any acceptable bid, the trust, at any time within 60 days from the date of such advertised sale, may sell such bonds at private sale upon terms not less favorable to the State than the terms offered by any rejected bid. The trust may sell all or part of the bonds of any series as issued to any State fund or to the federal government or any agency thereof, at private sale, without advertisement.
e. Bonds, notes or other obligations of the trust may be issued under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) without obtaining the consent of any department, division, board, bureau or agency of the State, and without any other proceedings or the happening of any other conditions or things, other than those consents, proceedings, conditions or things which are specifically required by P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4).
f. Bonds, notes or other obligations of the trust issued under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) shall not be a debt or liability of the State or of any political subdivision thereof other than the trust and shall not create or constitute any indebtedness, liability or obligation of the State or any political subdivision, but all these bonds, notes and other obligations, unless funded or refunded by bonds, notes or other obligations, shall be payable solely from revenues or funds pledged or available for their payment as authorized in P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4). Each bond, note and obligation shall contain on its face a statement to the effect that the trust is obligated to pay the principal thereof or the interest thereon only from its revenues, receipts or funds pledged or available for their payment as authorized in P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and that neither the State, nor any political subdivision thereof, is obligated to pay the principal or interest and that neither the faith and credit nor the taxing power of the State, or any political subdivision thereof, is pledged to the payment of the principal of or the interest on the bonds, notes or other obligations.
g. The aggregate principal amount of bonds, notes or other obligations, including subordinated indebtedness of the trust, shall not exceed (1) $5,000,000,000 with respect to bonds, notes, or other obligations issued to finance the Disaster Relief Emergency Financing Program established pursuant to section 1 of P.L.2013, c.93 (C.58:11B-9.5), and (2) $5,000,000,000 with respect to bonds, notes, or other obligations issued for all other purposes of the trust. In computing the foregoing limitations there shall be excluded all the bonds, notes or other obligations, including subordinated indebtedness of the trust, which shall be issued for refunding purposes, whenever the refunding shall be determined to result in a savings.
(1) Upon the decision by the trust to issue refunding bonds, except for current refunding, and prior to the sale of those bonds, the trust shall transmit to the Joint Budget Oversight Committee, or its successor, a report that a decision has been made, reciting the basis on which the decision was made, including an estimate of the debt service savings to be achieved and the calculations upon which the trust relied when making the decision to issue refunding bonds. The report shall also disclose the intent of the trust to issue and sell the refunding bonds at public or private sale and the reasons therefor.
(2) The Joint Budget Oversight Committee or its successor shall have the authority to approve or disapprove the sales of refunding bonds as included in each report submitted in accordance with paragraph (1) of this subsection. The committee shall notify the trust in writing of the approval or disapproval within 30 days of receipt of the report. Should the committee not act within 30 days of receipt of the report, the trust may proceed with the sale of the refunding bonds, provided that the sale of refunding bonds shall realize not less than three percent net present value debt service savings.
(3) No refunding bonds shall be issued unless the report has been submitted to and approved by the Joint Budget Oversight Committee or its successor as set forth in paragraphs (1) and (2) of this subsection.
(4) Within 30 days after the sale of the refunding bonds, the trust shall notify the committee of the result of that sale, including the prices and terms, conditions and regulations concerning the refunding bonds, the actual amount of debt service savings to be realized as a result of the sale of refunding bonds, and the intended use of the proceeds from the sale of those bonds.
(5) The committee shall review all information and reports submitted in accordance with this subsection and may, on its own initiative, make observations to the trust, or to the Legislature, or both, as it deems appropriate.
h. Each issue of bonds, notes, or other obligations of the trust may, if it is determined by the trust, be general obligations thereof payable out of any revenues, receipts or funds of the trust, or special obligations thereof payable out of particular revenues, receipts or funds, subject only to any agreements with the holders of bonds, notes or other obligations, and may be secured by one or more of the following:
(1) Pledge of revenues and other receipts to be derived from the payment of the interest on and principal of notes, bonds or other obligations issued to the trust by one or more local government units, public water utilities, or other persons, and any other payment made to the trust pursuant to agreements with any local government units, public water utilities, or other persons, or a pledge or assignment of any notes, bonds, or other obligations of any local government unit public water utilities, or other persons and the rights and interest of the trust therein;
(2) Pledge of rentals, receipts and other revenues to be derived from leases or other contractual arrangements with any person or entity, public or private, including one or more local government units, public water utilities, or other persons, or a pledge or assignment of those leases or other contractual arrangements and the rights and interest of the trust therein;
(3) Pledge of all moneys, funds, accounts, securities and other funds, including the proceeds of the bonds, notes or other obligations;
(4) Pledge of the receipts to be derived from the payments of State aid, payable to the trust pursuant to section 12 of P.L.1985, c.334 (C.58:11B-12);
(5) A mortgage on all or any part of the property, real or personal, of the trust then owned or thereafter to be acquired, or a pledge or assignment of mortgages made to the trust by any person or entity, public or private, including one or more local government units, public water utilities, or other persons, and the rights and interest of the trust therein.
i. The trust shall not issue any bonds, notes or other obligations, or otherwise incur any additional indebtedness, on or after June 30, 2053.
j. (Deleted by amendment, P.L.1996, c.88)
a. Secure the bonds, notes or other obligations as provided in section 6 of P.L.1985, c.334 (C.58:11B-6);
b. Covenant against pledging all or part of its revenues or receipts;
c. Covenant with respect to limitations on any right to sell, mortgage, lease or otherwise dispose of any notes, bonds or other obligations of local government units or other persons, or any part thereof, or any property of any kind;
d. Covenant as to any bonds, notes or other obligations to be issued by the trust, and the limitations thereon, and the terms and conditions thereof, and as to the custody, application, investment and disposition of the proceeds thereof;
e. Covenant as to the issuance of additional bonds, notes or other obligations of the trust or as to limitations on the issuance of additional bonds, notes or other obligations and on the incurring of other debts by it;
f. Covenant as to the payment of the principal of or interest on bonds, notes or other obligations of the trust, as to the sources and methods of payment, as to the rank or priority of the bonds, notes or other obligations with respect to any lien or security or as to the acceleration of the maturity of the bonds, notes or other obligations;
g. Provide for the replacement of lost, stolen, destroyed or mutilated bonds, notes or other obligations of the trust;
h. Covenant against extending the time for the payment of bonds, notes or other obligations of the trust or interest thereon;
i. Covenant as to the redemption of bonds, notes and other obligations by the trust or the holders thereof and privileges of exchange thereof for other bonds, notes or other obligations of the trust;
j. Covenant to create or authorize the creation of special funds or accounts to be held in trust or otherwise for the benefit of holders of bonds, notes and other obligations of the trust, or reserves for other purposes and as to the use, investment, and disposition of moneys held in those funds, accounts or reserves;
k. Provide for the rights and liabilities, powers and duties arising upon the breach of any covenant, condition or obligation and prescribe the events of default and terms and conditions upon which any or all of the bonds, notes or other obligations of the trust shall become or may be declared due and payable before maturity and the terms and conditions upon which the declaration and its consequences may be waived;
l. Vest in a trustee or trustees within or without the State any property, rights, powers and duties in trust as the trust may determine, which may include any or all of the rights, powers and duties of any trustee appointed by the holders of any bonds, notes or other obligations of the trust pursuant to section 18 of P.L.1985, c.334 (C.58:11B-18), including rights with respect to the sale or other disposition of notes, bonds or other obligations of local government units, public water utilities, or other persons, pledged pursuant to a resolution or trust indenture for the benefit of the holders of bonds, notes or other obligations of the trust and the right by suit or action to foreclose any mortgage pledged pursuant to the resolution or trust indenture for the benefit of the holders of the bonds, notes or other obligations, and to limit or abrogate the right of the holders of any bonds, notes or other obligations of the trust to appoint a trustee under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and to limit the rights, duties and powers of the trustee;
m. Pay the costs or expenses incident to the enforcement of the bonds, notes or other obligations of the trust or of the provisions of the resolution authorizing the issuance of those bonds, notes or other obligations or of any covenant or agreement of the trust with the holders of the bonds, notes or other obligations;
n. Limit the rights of the holders of any bonds, notes or other obligations of the trust to enforce any pledge or covenant securing the bonds, notes or other obligations; and
o. Make covenants other than or in addition to the covenants authorized by P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) of like or different character, and make covenants to do or refrain from doing any acts and things as may be necessary, or convenient and desirable, in order to better secure the bonds, notes or other obligations of the trust, or which, in the absolute discretion of the trust, would make the bonds, notes or other obligations more marketable, notwithstanding that the covenants, acts or things may not be enumerated herein.
Any pledge of revenues, receipts, moneys, funds, or other property or instruments made by the trust shall be valid and binding from the time when the pledge is made. The revenues, receipts, moneys, funds or other property so pledged and thereafter received by the trust shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of any pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the trust, irrespective of whether the parties have notice thereof. Neither the resolution nor any other instrument by which a pledge under this section is created need be filed or recorded, except in the records of the trust.
(2) The trust may make and contract to make loans to public water utilities, or to any other person or local government unit on behalf of a public water utility, in accordance with and subject to the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.) to finance the cost of any water supply project, which the public water utility may lawfully undertake or acquire.
(3) The trust may make and contract to make loans to private persons other than local government units, or to any other person or local government unit on behalf of a private person, in accordance with and subject to the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.) to finance the cost of onsite wastewater treatment and disposal systems or stormwater management systems.
(4) The trust may make and contract to make loans and provide other assistance to a local government unit or consortia thereof to finance the cost of transportation projects, aviation projects, and marine projects pursuant to sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and provided that the federally-funded transportation subaccount is operated in accordance with the provisions of the federal infrastructure bank program.
The loans may be made subject to those terms and conditions as the trust shall determine to be consistent with the purposes thereof. Except for short-term or temporary loans, each loan by the trust and the terms and conditions thereof shall be subject to approval by the State Treasurer, and the trust shall make available to the State Treasurer all information, statistical data and reports of independent consultants or experts as the State Treasurer shall deem necessary in order to evaluate the loan. Each loan to a local government unit, public water utility or any other person shall be evidenced by notes, bonds or other obligations thereof issued to the trust. In the case of each local government unit, notes and bonds to be issued to the trust and, if applicable, the State, acting by and through the Department of Environmental Protection, by the local government unit (1) shall be authorized and issued as provided by law for the issuance of notes and bonds by the local government unit, (2) notwithstanding any provisions of the "Local Authorities Fiscal Control Law," P.L.1983, c.313 (C.40A:5A-1 et seq.) to the contrary, shall be approved by the Director of the Division of Local Government Services in the Department of Community Affairs, and (3) notwithstanding the provisions of N.J.S.40A:2-27, N.J.S.40A:2-28 and N.J.S.40A:2-29 or any other provisions of law to the contrary, may be sold at private sale to the trust or the State, as the case may be, at any price, whether or not less than par value, and shall be subject to redemption prior to maturity at any times and at any prices as the trust or the State, as the case may be, and local government units may agree. Each loan to a local government unit, public water utility or any other person and the notes, bonds or other obligations thereby issued shall bear interest at a rate or rates per annum as the trust or the State, as the case may be, and the local government unit, public water utility or any other person, as the case may be, may agree.
b. The trust is authorized to guarantee or contract to guarantee the payment of all or any portion of the principal and interest on bonds, notes or other obligations issued by a local government unit, public water utility, or other person, to finance, as applicable, the cost of any wastewater treatment system project, water supply project, transportation project, aviation project, or marine project, or redevelopment project that includes, as a portion thereof, any wastewater treatment system project, water supply project, transportation project, aviation project, marine project, or hazard mitigation and resilience project as defined in section 2 of P.L.2023, c.63 (C.58:11B-20.4), which the local government unit, public water utility, or other person may lawfully undertake or acquire and for which the local government unit is authorized by law to borrow money, and the guarantee shall constitute an obligation of the trust, and shall be in furtherance of the corporate purposes of the trust, for the purposes of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4). Each guarantee by the trust and the terms and conditions thereof shall be subject to approval by the State Treasurer, and the trust shall make available to the State Treasurer all information, statistical data and reports of independent consultants or experts as the State Treasurer shall deem necessary in order to evaluate the guarantee.
c. The trust shall not make or contract to make any loans or guarantees to local government units, public water utilities or any other person, or otherwise incur any additional indebtedness, on or after June 30, 2053.
d. Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.) to the contrary, the trust may receive funds from any source including, without limitation, any funds drawn by the trust from a revolving line of credit or other similar financial vehicle that may be procured by the trust, either through a competitive or negotiated process, pursuant to section 5 of P.L.1985, c.334 (C.58:11B-5), for deposit into the Interim Environmental Financing Program Fund or the trust may issue its bonds, notes or other obligations, including commercial paper issued through a competitive or negotiated process, in any principal amounts, in either case, as in the judgment of the trust shall be necessary to provide sufficient funds to finance or refinance short-term or temporary loans to local government units, public water utilities or private persons for any wastewater treatment system projects included on the Department of Environmental Protection project priority list and eligible for approval pursuant to section 20 of P.L.1985, c.334 (C.58:11B-20) or water supply projects included on the Department of Environmental Protection project priority list and eligible for approval pursuant to section 24 of P.L.1997, c.224 (C.58:11B-20.1), as applicable, without regard to any other provisions of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.), including, without limitation, any administrative or legislative approvals.
The trust shall create and establish a special fund to be known as the "Interim Environmental Financing Program Fund" for the short-term or temporary loan financing or refinancing program to be known as the "Interim Environmental Financing Program." The monies in the fund shall be used for short-term or temporary loans for clean water and drinking water projects pursuant to the New Jersey Environmental Infrastructure Financing Program.
Except as provided in section 1 of P.L.2013, c.93 (C.58:11B-9.5), any short-term or temporary loans made by the trust pursuant to this subsection may only be made in advance of the anticipated loans the trust may make and contract to make under the provisions of subsection a. of this section from any source of funds anticipated to be received by the trust. Any such short-term or temporary loan made pursuant to the Interim Environmental Financing Program shall mature no later than the last day of the fifth succeeding fiscal year following the closing date on which the short-term or temporary loan was made by the trust to the project sponsor; except a short-term or temporary loan made pursuant to this subsection for environmental planning and engineering design costs associated with long-term control plans for combined sewer overflow projects shall mature no later than the last day of the 10th succeeding fiscal year following the closing date on which the short-term or temporary loan was made by the trust to the project sponsor; and except a short-term or temporary loan made pursuant to this subsection which has been submitted as part of an application for funding pursuant to the "Water Infrastructure Finance and Innovation Act of 2014" (WIFIA), 33 U.S.C. s.3901 et seq., as amended and supplemented, shall mature not later than the funding draw period allowed by this federal act. Any short-term or temporary loan made by the trust pursuant to this subsection may mature in a shorter period of time as may be necessary to align with construction completion. With respect to any short-term or temporary loan made by the trust pursuant to this subsection, the trust may authorize one short-term supplemental loan for residual project expenses thereof upon receipt by the trust from the Department of Environmental Protection of a certification that states that the time required by the project sponsor to complete construction of the project exceeds the maximum maturity date of the project sponsor's outstanding short-term or temporary loan. Any such short-term supplemental loan shall not exceed in duration the last day of the third succeeding fiscal year following the loan closing of the supplemental loan. The trust may make short-term or temporary loans pursuant to the Interim Environmental Financing Program to any one or more of the project sponsors, for the respective projects thereof, identified in the interim financing project priority list to be known as the "Interim Environmental Financing Program Project Priority List" in the form provided to the Legislature by the Commissioner of Environmental Protection.
The Interim Environmental Financing Program Project Priority List, including any revision thereof or supplement thereto, shall be submitted to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) at least once in each fiscal year as provided in section 20 of P.L.1985, c.334 (C.58:11B-20) and section 24 of P.L.1997, c.224 (C.58:11B-20.1). The Secretary and the Clerk shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively. The trust may revise or supplement the Interim Environmental Financing Program Project Priority List no more than four times during the fiscal year and shall submit the revised list to the Legislature when the revisions are made. Any environmental infrastructure project or the project sponsor thereof not identified in the Interim Environmental Financing Program Project Priority List shall not be eligible for a short-term or temporary loan from the Interim Environmental Financing Program Fund. The trust may issue short-term or temporary loans pursuant to this subsection only if a project is listed on an Interim Environmental Financing Program Project Priority List that has been submitted to the Legislature. No funds may be disbursed pursuant to this section for environmental infrastructure project activities prior to a determination and certification, in writing, from the Department of Environmental Protection, that the project activities satisfy the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.).
e. Notwithstanding any provisions of the "Local Bond Law" (N.J.S.40A:2-1 et seq.), the "sewerage authorities law," P.L.1946, c.138 (C.40:14A-1 et seq.), or the "municipal and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.) to the contrary, short-term or temporary loans made by the trust pursuant to section 9 of P.L.1985, c.334 (C.58:11B-9), section 1 of P.L.2013, c.93 (C.58:11B-9.5), or section 6 of P.L.2023, c.63 (C.58:11B-20.5), and the obligations issued by project sponsors to evidence such loans, may, at the discretion of the trust and upon application by the project sponsor, bear interest at a variable rate determined pursuant to a methodology as may be established by the trust from time to time.
Further, notwithstanding any provisions of the "Local Bond Law" (N.J.S.40A:2-1 et seq.), the "sewerage authorities law," P.L.1946, c.138 (C.40:14A-1 et seq.), or the "municipal and county utilities authorities law," P.L.1957, c.183 (C.40:14B-1 et seq.) to the contrary, any short-term or temporary loans made by the trust pursuant to section 9 of P.L.1985, c.334 (C.58:11B-9), section 1 of P.L.2013, c.93 (C.58:11B-9.5), or section 6 of P.L.2023, c.63 (C.58:11B-20.5), and any notes or other obligations issued by project sponsors to evidence such short-term or temporary loans, as such loans, notes, or other obligations may be refinanced or extended, as provided in subsections d. and g. of this section and section 1 of P.L.2013, c.93 (C.58:11B-9.5), except for loans for environmental planning and engineering design costs associated with long-term control plans for combined sewer overflow projects as provided in subsection d. of this section, shall mature no later than the maturity date as established pursuant to subsections d. and g. of this section and section 1 of P.L.2013, c.93 (C.58:11B-9.5), without payment by project sponsors of any portion of the principal thereof prior to maturity.
f. Any balances remaining in the Emergency Loan Fund established pursuant to section 4 of P.L.2007, c.138 (C.58:11B-9.1), the Planning and Design Fund established pursuant to section 1 of P.L.2009, c.59 (C.58:11B-9.2), the Onsite Wastewater Disposal Loan Fund established pursuant to section 5 of P.L.2009, c.103 (C.58:11B-9.3), the Supplemental Loan Fund established pursuant to section 2 of P.L.2011, c.94 (C.58:11B-9.4), and the Equipment Loan Fund established pursuant to section 1 of P.L.2014, c.28 (C.58:11B-9.6) after the date of enactment of P.L.2016, c.30 shall be transferred to the Interim Environmental Financing Program Fund, and any loan repayments to the trust of principal and interest or premium on loans made from those funds shall be credited to the Interim Environmental Financing Program Fund.
g. The trust shall create and establish a special fund to be known as the "Interim Transportation Financing Program Fund" for the short-term or temporary loan financing or refinancing program to be known as the "Interim Transportation Financing Program."
Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.) to the contrary, the trust may receive funds from any source including, without limitation, any funds drawn by the trust from a revolving line of credit or other similar financial vehicle that may be procured by the trust, either through a competitive or negotiated process, pursuant to section 5 of P.L.1985, c.334 (C.58:11B-5), for deposit into the Interim Transportation Financing Program Fund or the trust may issue its bonds, notes or other obligations in any principal amounts, in either case, as in the judgment of the trust shall be necessary to provide sufficient funds to finance or refinance short-term or temporary loans to local government units or private persons for any transportation project, aviation project, or marine project included on the Department of Transportation Interim Transportation Financing Program Project Priority List for the ensuing fiscal year and eligible for approval pursuant to sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), without regard to any other provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), including, without limitation, any administrative or legislative approvals.
Any short-term or temporary loans made by the trust pursuant to this subsection may only be made in advance of the anticipated loans the trust may make and contract to make under the provisions of subsection a. of this section from any source of funds anticipated to be received by the trust. Any such short-term or temporary loan made pursuant to the Interim Transportation Financing Program shall mature no later than the last day of the fifth succeeding fiscal year following the closing date on which the short-term or temporary loan was made by the trust to the project sponsor; except a short-term or temporary loan made pursuant to this subsection which has been submitted as part of an application for funding pursuant to the "Transportation Infrastructure Finance and Innovation Act of 1998" (TIFIA), 23 U.S.C. s.601 et seq., as amended and supplemented, shall mature not later than the funding draw period allowed by this federal act. Any short-term or temporary loan made by the trust pursuant to this subsection may mature in a shorter period of time as may be necessary to align with construction completion. With respect to any short-term or temporary loan made by the trust pursuant to this subsection, the trust may authorize one short-term supplemental loan for residual expenses thereof upon receipt by the trust from the Department of Transportation of a certification that states that the time required by the project sponsor to complete construction of the project exceeds the maximum maturity date of the short-term or temporary loan. Any such short-term supplemental loan shall not exceed in duration the last day of the third succeeding fiscal year following the loan closing of the short-term supplemental loan. The trust may make short-term or temporary loans pursuant to the Interim Transportation Financing Program to any one or more of the project sponsors, for the respective projects thereof, only if a project is identified in the Department of Transportation Interim Transportation Financing Program Project Priority List to be known as the "Interim Transportation Financing Program Project Priority List" in the form provided to the Legislature by the Commissioner of Transportation.
The Interim Transportation Financing Program Project Priority List, including any revision thereof or supplement thereto, shall be submitted to the Secretary of the Senate and the Clerk of the General Assembly on or before July 1 of each year. The Interim Transportation Financing Program Project Priority List shall be submitted to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) at least once in each fiscal year. The Secretary and the Clerk shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively. Any transportation infrastructure project or the project sponsor thereof not identified in the Interim Transportation Financing Program Project Priority List shall not be eligible for a short-term or temporary loan from the Interim Transportation Financing Program Fund. The trust may revise or supplement the Interim Transportation Financing Program Project Priority List no more than four times during the fiscal year, and shall submit the revised list to the Legislature when the revisions are made.
No funds may be disbursed pursuant to this subsection for transportation project, aviation project, or marine project activities prior to certification in writing, from the trust, that the project activities satisfy the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4). Construction activities for a transportation project shall also require written notification of award concurrence from the Department of Transportation prior to fund disbursement.
(1) The environmental subaccount of the Disaster Relief Emergency Financing Program Fund shall be credited with:
(a) moneys deposited in the environmental subaccount as administrative fees received by the trust pursuant to subsection o. of section 5 of P.L.1985, c.334 (C.58:11B-5) that are attributable to the Environmental Infrastructure Financing Program;
(b) moneys received by the trust as repayment of the principal of and the interest or premium on loans made from the environmental subaccount;
(c) any interest earnings received on the moneys in the environmental subaccount;
(d) such other moneys as the Legislature may appropriate to the trust for deposit into the environmental subaccount at any time to finance or refinance emergency short-term or temporary environmental infrastructure project loans pursuant to the Disaster Relief Emergency Financing Program;
(e) the proceeds of any bonds, notes or other obligations that may be issued by the trust from time to time in any principal amounts as in the judgment of the trust shall be necessary or appropriate to provide sufficient funds for deposit into the environmental subaccount to finance or refinance emergency short-term or temporary environmental infrastructure project loans pursuant to the Disaster Relief Emergency Financing Program; and
(f) any other source of available funds that may be deemed by the trust to be necessary or appropriate to provide sufficient funds for deposit into the environmental subaccount to finance or refinance emergency short-term or temporary environmental infrastructure project loans pursuant to the Disaster Relief Emergency Financing Program, including, without limitation, any funds drawn by the trust from (i) a revolving line of credit or other similar financial vehicle, or (ii) a commercial paper financing program, either through a competitive or negotiated process, that may be procured by the trust pursuant to the provisions of section 5 of P.L.1985, c.334 (C.58:11B-5), for deposit into the environmental subaccount to finance or refinance emergency short-term or temporary environmental infrastructure project loans pursuant to the Disaster Relief Emergency Financing Program.
(2) The transportation subaccount of the Disaster Relief Emergency Financing Program Fund shall be credited with:
(a) moneys deposited in the transportation subaccount as administrative fees received by the trust pursuant to subsection o. of section 5 of P.L.1985, c.334 (C.58:11B-5) that are attributable to the Transportation Financing Program;
(b) moneys received by the trust as repayment of the principal of and the interest or premium on loans made from the transportation subaccount;
(c) any interest earnings received on the moneys in the transportation subaccount;
(d) such other moneys as the Legislature may appropriate to the trust for deposit into the transportation subaccount at any time to finance or refinance emergency short-term or temporary transportation loans pursuant to the Disaster Relief Emergency Financing Program;
(e) the proceeds of any bonds, notes or other obligations that may be issued by the trust from time to time in any principal amounts as in the judgment of the trust shall be necessary or appropriate to provide sufficient funds for deposit into the transportation subaccount to finance or refinance emergency short-term or temporary transportation loans pursuant to the Disaster Relief Emergency Financing Program; and
(f) any other source of available funds that may be deemed by the trust to be necessary or appropriate to provide sufficient funds for deposit into the transportation subaccount to finance or refinance emergency short-term or temporary transportation loans pursuant to the Disaster Relief Emergency Financing Program, including, without limitation, any funds drawn by the trust from (i) a revolving line of credit or other similar financial vehicle, or (ii) a commercial paper financing program, either through a competitive or negotiated process, that may be procured by the trust pursuant to the provisions of section 5 of P.L.1985, c.334 (C.58:11B-5).
b. Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) to the contrary, the trust may make emergency short-term or temporary Disaster Relief Emergency Financing Program loans to: (1) local government units to finance or refinance the costs incurred in the environmental planning and design associated with the wastewater treatment system projects, and to finance wastewater treatment system projects, as applicable; (2) local government units, public water utilities, or private persons to finance or refinance the costs incurred in the environmental planning and design of water supply projects, and to finance water supply projects, as applicable; or (3) local government units to finance or refinance the costs incurred in the planning and design associated with transportation projects, aviation projects, and marine projects, and to finance transportation projects, aviation projects, and marine projects, as applicable.
Funds may only be disbursed for emergency short-term or temporary loans upon the determination and certification in writing by the Department of Environmental Protection for environmental infrastructure projects, and by the Department of Transportation for transportation projects, aviation projects, and marine projects, that any such project costs are necessary and appropriate to: repair damages to a wastewater treatment system, water supply facility, transportation system, airport facility, or marine port or terminal facility directly arising from an act of terrorism, seismic activity, weather conditions, or other emergency event that occurred within the three fiscal years after a declaration by the Governor of a state of emergency, provided the wastewater treatment system, water supply facility, transportation system, airport facility, or marine port or terminal facility is located in a county included in the Governor's state of emergency declaration; or mitigate the risk of future damage to a wastewater treatment system, water supply facility, transportation system, airport facility, or marine port or terminal facility, from an act of terrorism, seismic activity, weather conditions, or other emergency event comparable in scope and severity to the act of terrorism, seismic activity, weather conditions, or other emergency event that occurred within the three fiscal years after a declaration by the Governor of a state of emergency, provided the wastewater treatment system, water supply facility, transportation system, airport facility, or marine port or terminal facility is located in a county included in the Governor's state of emergency declaration, without regard to any other provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), including, without limitation, the provisions of section 20 of P.L.1985, c.334 (C.58:11B-20), section 24 of P.L.1997, c.224 (C.58:11B-20.1), the Interim Environmental Financing Program Project Priority List pursuant to subsection d. of section 9 of P.L.1985, c.334 (C.58:11B-9), or the Interim Transportation Financing Program Project Priority List pursuant to subsection g. of section 9 of P.L.1985, c.334 (C.58:11B-9), or any administrative or legislative approvals. A project shall be eligible for emergency short-term or temporary loans pursuant to this section if it is identified on a Disaster Relief Emergency Financing Program Project Priority List no more than three years after the conditions that gave rise to a declaration by the Governor of a state of emergency. Any such short-term or temporary loan pursuant to the Disaster Relief Emergency Financing Program shall mature no later than the last day of the fifth succeeding fiscal year following the closing date on which the short-term or temporary loan was made by the trust to the project sponsor. With respect to any short-term or temporary loan made by the trust pursuant to this subsection, the trust may authorize one short-term supplemental loan for residual project expenses thereof upon receipt by the trust from the Department of Environmental Protection or the Department of Transportation, as appropriate, of a certification that states that the time required by the project sponsor to complete construction of the project exceeds the maximum maturity date of the short-term or temporary loan. Any such short-term supplemental loan shall not exceed in duration the last day of the third succeeding fiscal year following the loan closing of the short-term supplemental loan.
c. The trust may make short-term or temporary loans pursuant to the Disaster Relief Emergency Financing Program to one or more of the project sponsors, for the respective projects thereof, provided that the project is identified on the Environmental Disaster Relief Emergency Financing Program project priority list to be known as the "Environmental Disaster Relief Emergency Financing Program Project Priority List" no later than three years after the date of the declaration by the Governor of a state of emergency in the form provided to the Legislature by the Commissioner of Environmental Protection, or the Transportation Disaster Relief Emergency Financing Program project priority list to be known as the "Transportation Disaster Relief Emergency Financing Program Project Priority List" no later than three years after the date of the declaration by the Governor of a state of emergency in the form provided to the Legislature by the Commissioner of the Department of Transportation. However, a project may be eligible for funding pursuant to this section more than three years after the date of the declaration by the Governor of a state of emergency if the project was first included on an Environmental Disaster Relief Emergency Financing Program Project Priority List or a Transportation Disaster Relief Emergency Financing Program Project Priority List within three years after the date of the declaration by the Governor of a state of emergency and continues to be identified on the Environmental Disaster Relief Emergency Financing Program Project Priority List or the Transportation Disaster Relief Emergency Financing Program Project Priority List in the fiscal year in which the funding is issued. The Environmental Disaster Relief Emergency Financing Program Project Priority List and the Transportation Disaster Relief Emergency Financing Program Project Priority List shall be submitted to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) at least once in each fiscal year. A project or a project sponsor thereof not identified on the Environmental Disaster Relief Emergency Financing Program Project Priority List or Transportation Disaster Relief Emergency Financing Program Project Priority List submitted to the Legislature shall not be eligible for a short-term or temporary loan from the Disaster Relief Emergency Financing Program Fund.
d. The trust shall submit a report on the Disaster Emergency Financing Program to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) on or before January 15 of each year. The Secretary of the Senate and the Clerk of the General Assembly shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively. The report shall identify the environmental infrastructure projects, transportation projects, aviation projects, and marine projects financed during the prior fiscal year through the program including a project description, the amount of the Disaster Relief Emergency Financing Program loan provided for each project, and the duration of each loan.
Subject to the provisions of the legislation appropriating moneys to the trust, subject to any other provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) providing otherwise, and subject to agreements with the holders of bonds, notes and other obligations of the trust, the trust shall deposit into the wastewater treatment system general loan fund all revenues and receipts of the trust, including moneys received by the trust as payment of the principal of and the interest or premium on loans made from moneys in any wastewater treatment system fund or account held by the trust under P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and the earnings on the moneys in any wastewater treatment system fund or account of the trust, and all grants, appropriations, other than those referred to in section 11 of P.L.1985, c.334 (C.58:11B-11), contributions, or other moneys from any source, available for the making of loans to local government units. The amounts in the wastewater treatment system general loan fund shall be available for application by the trust for loans to local government units for the cost of wastewater treatment system projects, and for other corporate purposes of the trust related to wastewater treatment systems, subject to agreements with the holders of bonds, notes or other obligations of the trust.
Subject to the provisions of the legislation appropriating moneys to the trust, subject to any other provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) providing otherwise, and subject to agreements with the holders of bonds, notes and other obligations of the trust, the trust shall deposit into the water supply facilities general loan fund all revenues and receipts of the trust, including moneys received by the trust as payment of the principal of and the interest or premium on loans made from moneys in any fund or account held by the trust under the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4), and the earnings on the moneys in any fund or account of the trust, and all grants, appropriations, other than those referred to in section 11 of P.L.1985, c.334 (C.58:11B-11), contributions, or other moneys from any source, available for the making of loans to local government units, public water utilities, or to any other person or local government unit on behalf of a public water utility, for water supply projects. The amounts in the water supply facilities general loan fund shall be available for application by the trust for loans to local government units, public water utilities or any other person for the cost of water supply projects, and for other corporate purposes of the trust, subject to agreements with the holders of bonds, notes or other obligations of the trust.
The Department of Environmental Protection Loan Origination Fee Fund shall be credited with:
(1) moneys deposited into the fund as loan origination fees received by the Department of Environmental Protection and paid by project sponsors of wastewater treatment system projects or water supply projects financed under the New Jersey Environmental Infrastructure Financing Program; and
(2) any interest paid on the amounts on deposit in the Department of Environmental Protection Loan Origination Fee Fund.
b. Moneys in the Department of Environmental Protection Loan Origination Fee Fund shall be drawn and used by the Department of Environmental Protection for administrative and operating expenses incurred by the department in administering the New Jersey Environmental Infrastructure Financing Program, except that the total amount utilized by the department for administrative and operating expenses in any fiscal year shall not exceed $5,000,000. The monies in the Department of Environmental Protection Loan Origination Fee Fund shall also be available for application by the department for State matching funds or loans to local government units for the cost of wastewater treatment system or water supply projects. Amounts in excess of the funds drawn by the department from the Department of Environmental Protection Loan Origination Fee Fund during any given fiscal year shall be carried forward into the following fiscal year and held on deposit in the fund.
c. As used in this section, "Department of Environmental Protection loan origination fee" means the fee charged by the Department of Environmental Protection in connection with engineering and environmental services provided by the department to a project sponsor pursuant to such project sponsor's participation in the New Jersey Environmental Infrastructure Financing Program. A project sponsor may finance any portion of the Department of Environmental Protection loan origination fee through the trust by a trust loan to pay a portion of the costs incurred by the department in the implementation of the New Jersey Environmental Infrastructure Financing Program.
The Transportation Loan Origination Fee Fund shall be credited with:
(1) moneys deposited into the fund as loan origination fees received by the trust and paid by loan applicants for transportation projects, aviation projects, and marine projects financed under the New Jersey Transportation Infrastructure Financing Program; and
(2) any interest paid on the amounts of the transportation loan origination fees.
b. Moneys in the Transportation Loan Origination Fee Fund shall be drawn and used by the trust to reimburse the trust and then the Department of Transportation for administrative and operating expenses incurred in administering the New Jersey Transportation Infrastructure Financing Program, except that the total amount expended by the trust for administrative and operating expenses in any fiscal year shall not exceed $8,000,000. The monies in the Transportation Loan Origination Fee Fund shall also be available for application by the trust for loans to local government units for the cost of transportation projects, aviation projects, and marine projects. Amounts in excess of the funds drawn by the Department of Transportation from the Transportation Loan Origination Fee Fund during any given fiscal year shall be carried forward into the following fiscal year and held on deposit in the fund.
c. As used in this section, "transportation loan origination fee" means the fee charged by the trust in connection with engineering and environmental services provided by the Department of Transportation to a project sponsor pursuant to such project sponsor's participation in the New Jersey Transportation Financing Program. A project sponsor may finance any portion of the transportation loan origination fee through the trust through a transportation loan by the trust to such project sponsor.
The State Transportation Infrastructure Bank Fund shall be credited with:
(1) (a) State and federal funds appropriated to the federally-funded transportation project subaccount of the State Transportation Infrastructure Bank Fund pursuant to the federal infrastructure bank program provided for in section 350 of Pub.L.104-59 and Pub.L.102-240 as amended or superseded,
(b) State funds in excess of any minimum State match required under the federal infrastructure bank program, appropriated to the State-funded transportation project subaccount of the State Transportation Infrastructure Bank Fund,
(c) State and federal funds appropriated to the aviation project subaccount of the State Transportation Infrastructure Bank funds, and
(d) State and federal funds appropriated to the marine subaccount of the State Transportation Infrastructure Bank Fund;
(2) monetary donations made available to the State to support the State Transportation Infrastructure Bank Fund;
(3) moneys received as repayment of the principal of and the interest or premium on loans made from the State Transportation Infrastructure Bank Fund;
(4) any interest earnings received on the moneys in the State Transportation Infrastructure Bank Fund and the four subaccounts of the fund; and
(5) such other moneys as the Legislature may appropriate to the trust for deposit into the State Transportation Infrastructure Bank Fund at any time to finance or refinance transportation project, aviation project, or marine project loans issued from funds in the State Transportation Infrastructure Bank Fund.
b. Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.) or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) to the contrary, all moneys placed into the State Transportation Infrastructure Bank Fund shall be held separate from other funds of the trust, and no transportation funds, aviation funds, or marine funds shall be combined or comingled with any funds that finance (1) wastewater treatment system projects, (2) water supply projects, or (3) other environmental infrastructure projects, that are not transportation projects, aviation projects, or marine projects.
c. All moneys placed into the State-funded transportation project subaccount of the State Transportation Infrastructure Bank Fund shall be held separate from any federal funds provided for the federally-funded transportation project subaccount of the State Transportation Infrastructure Bank Fund.
d. Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.) or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) to the contrary, the trust may provide loans or other assistance to one or more local government units or consortia thereof for the purpose of financing all or a portion of the costs incurred for the planning, acquisition, engineering, construction, reconstruction, repair, and rehabilitation of a transportation project, aviation project, or marine project, provided that monies from the federally-funded transportation project subaccount are limited to the purposes permitted under the federal infrastructure bank program.
e. In addition to the financing described in subsection d. of this section, a portion, not to exceed 10 percent, of the assistance provided from the State-funded transportation project subaccount of the State Transportation Infrastructure Bank Fund may be issued in the form of grants.
f. Loans or other assistance granted pursuant to this section shall be considered an investment or reinvestment by the State Transportation Infrastructure Bank Fund, provided that monies from the federally-funded transportation project subaccount are limited to the purposes permitted under the federal infrastructure bank program, and not a loan within the meaning of section 12 of P.L.1995, c.108 (C.27:1B-21.5).
g. The refinancing of debt relating to an existing transportation project, aviation project, or marine project shall not be an eligible form of assistance from the State Transportation Infrastructure Bank Fund, and a loan shall not be granted unless the applicant can demonstrate to the satisfaction of the trust that the assistance being sought is not for the refinancing of debt relating to an existing transportation project, aviation project, or marine project.
h. Any project, the use or purpose of which is private and for which no public benefit is created, shall not be eligible for financial assistance from the trust.
i. The trust shall consider the following factors when setting an interest rate on a loan provided pursuant to this section: (1) the current market rates for comparable obligations; (2) the nature of the project; (3) the financing structure of the project; (4) the creditworthiness of the borrower; and (5) the term of the proposed obligation.
j. (Deleted by amendment, P.L.2019, c.194).
k. In addition to the accounts and subaccounts established pursuant to this section, the trust may establish or direct the establishment of federal and State accounts or subaccounts as may be necessary to meet any applicable federal law requirements or desirable for the efficient administration of the trust.
b. The trust shall also develop a formal relationship with the Department of Transportation for purposes, including, but not limited to, the evaluation of potential transportation projects, aviation projects, and marine projects, fulfilling federal regulations regarding capital projects, coordinating with metropolitan planning organizations, ensuring that any projects obtaining assistance are consistent with the Statewide capital investment strategy, monitoring borrower creditworthiness standards, and advancing local, regional, and Statewide transportation objectives.
(2) There shall be established within the fund three subaccounts:
(a) a federally-funded hazard mitigation and resilience project subaccount approved to receive federal funds, repayments of loans, and interest earned on amounts in the subaccount;
(b) a State-funded hazard mitigation and resilience project subaccount approved to receive State matching funds, and funds in excess of those required to be deposited in the federally-funded hazard mitigation and resilience project subaccount; and
(c) a Community Hazard Assistance Mitigation Program Loan Origination Fee subaccount established pursuant to section 4 of P.L.2023, c.63 (C.58:11B-10.7).
b. The fund shall be credited with:
(1) any federal funds apportioned and allocated to the State pursuant to the STORM Act;
(2) proceeds from bonds, notes, or any other credit instrument issued by the bank pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.);
(3) any other moneys appropriated by the Legislature or otherwise made available to the fund for the purposes of sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.);
(4) moneys obtained from the payment of interest assessed on, and the repayment of principal of, any loans made pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.);
(5) any interest earnings or other investment income earned or received on the moneys in the fund; and
(6) loan origination fees paid and received pursuant to section 4 of P.L.2023, c.63 (C.58:11B-10.7).
c. All money appropriated or otherwise made available to the fund shall be dedicated for the purposes of the fund. Pending use, moneys in the fund may be invested and reinvested in the same manner as other moneys of the bank in the manner provided by law. All earnings received from the investment or deposit of such moneys shall be paid into and become a part of the fund and be available for use pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.).
d. Notwithstanding any provision of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3 , and C.58:11B-22.4), to the contrary, all moneys in the fund shall be held separate from other funds of the bank, and shall not be combined or comingled with any funds that finance wastewater treatment system projects, water supply projects, other environmental infrastructure projects, or transportation projects. The amounts of federal capitalization grants appropriated pursuant to the STORM Act and associated State matching funds, the repayments of loans, and the interest earned on amounts in the fund shall be accounted for separately from other amounts in the fund.
e. The State Office of Emergency Management, in conjunction with the bank, shall apply to the Federal Emergency Management Agency when funding is made available to states under the provisions of the STORM Act and the State Office of Emergency Management and the bank shall have the authority to enter into any agreement necessary to capitalize the fund.
f. The bank shall establish terms for providing assistance from the fund, including below-market interest rates, deferred payment schedules, and other provisions that will enable these funds to be used effectively and in accordance with the provisions of the STORM Act, any agreement entered into with the Federal Emergency Management Agency, and sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.).
g. The bank shall include an itemized account of expenditures from the fund in the financial plan required pursuant to section 7 of P.L.2023, c.63 (C.58:11B-22.5).
The Community Hazard Assistance Mitigation Program Loan Origination Fee subaccount shall be credited with:
(1) moneys deposited into the subaccount as loan origination fees received by the bank and paid by loan applicants for hazard mitigation and resilience projects; and
(2) any interest paid on the amounts of the loan origination fees.
b. Moneys in the Community Hazard Assistance Mitigation Program Loan Origination Fee subaccount shall be drawn and used by the bank to reimburse the bank for administrative and operating expenses incurred in administering the Community Hazard Assistance Mitigation Program. The monies in the Community Hazard Assistance Mitigation Program Loan Origination Fee subaccount shall also be available for application by the bank for loans to local government units and nonprofit organizations for the cost of hazard mitigation and resilience projects. Amounts in excess of the funds drawn by the bank from the subaccount established pursuant to this section during any given fiscal year shall be carried forward into the following fiscal year and held on deposit in the fund.
b. The bank may provide loans or other financial assistance from the fund to local government units and nonprofit organizations to (1) supplement, as allowable under federal law, rule, or regulation, funding received from other federal resilience grant programs, including the Building Resilient Infrastructures and Communities (BRIC) program, the Flood Mitigation Assistance (FMA) program, the Hazard Mitigation Grant Program (HMGP), and the United States Department of Housing and Urban Development's Community Development Block Grant Mitigation program, and (2) participate in the United States Army Corps of Engineers' Flood Risk Management Program.
c. (1) The bank may provide loans or other financial assistance from the fund to local government units for the purpose of establishing a program to provide loan funds to private property owners to use for hazard mitigation and resilience projects for a building. Hazard mitigation projects for private property owners shall include, but not be limited to, wind retrofit, flood mitigation elevation, floodproofing, fire retrofit mitigation, hurricane retrofit mitigation projects, and any other eligible projects pursuant to the STORM Act.
(2) Repayment of a loan provided by a local government unit to a private property owner may be collected in the same manner as property taxes and shall be collateralized by a lien on the real property that is the site of the hazard mitigation and resilience project. A property owner may sell property after receiving a loan pursuant to this subsection, provided that the property owner repays the loan.
(3) To the extent permitted by federal law, a local government unit that provides loans to private property owners pursuant to paragraph (1) of this subsection shall establish a graduated loan forgiveness program that shall, at minimum:
(a) provide full loan forgiveness for eligible households with income between 80 percent and 50 percent of the median income for the municipality in which the property to which the loan applies is located;
(b) provide 50 percent loan forgiveness for eligible households with income between 80 percent to 100 percent of the median income for the municipality in which the property to which the loan applies is located; and
(c) provide additional loan forgiveness percentages for households not covered by subparagraph (a) or (b) of this paragraph, based on:
(i) the number of private property owners with loans issued pursuant to this subsection that are outstanding;
(ii) the availability of funding; and
(iii) any other factor that the local government unit, in consultation with the State Office of Emergency Management, finds reasonable and necessary.
d. The bank may provide grants or other financial assistance to nonprofit organizations for hazard mitigation and resilience projects.
e. The bank shall, taking into consideration and in accordance with the requirements of the STORM Act, establish, in consultation with the State Office of Emergency Management, application procedures and eligibility criteria for State entities, local government units, and nonprofit organizations to receive loans or other financial assistance from the fund. The eligibility criteria shall require that an applicant demonstrate:
(1) the need for the loan or other financial assistance to address hazard mitigation; and
(2) the ability to repay the loan or other financial assistance, if required, at a later date.
f. Long-term loans provided from the fund shall be for a fixed loan period and shall comply with all applicable requirements of the STORM Act and any rules, regulations, or guidelines adopted by the Federal Emergency Management Agency governing funding provided pursuant to the STORM Act. The bank shall establish terms for providing assistance from the fund, including short-term or temporary loans for planning, design, and construction, below-market interest rates, deferred payment schedules, and other provisions that will enable these funds to be used effectively.
b. The trust may establish any reserves, funds or accounts as it may determine necessary or desirable to further the accomplishment of the purposes of the trust or to comply with the provisions of any agreement made by or authorized in any resolution of the trust.
(1) If the trust requires, and there has been a failure or inability by a local government unit to pay its obligations to the trust remaining uncured for a period of 30 days, the chairman of the trust shall certify to the State Treasurer, with written notice to the fiscal officer of the local government unit and to the Legislature, the amount remaining unpaid, and the State Treasurer shall pay that amount to the trust, or if the right to receive those payments has been pledged or assigned to a trustee for benefit of the holders of bonds, notes or other obligations of the trust, to that trustee, out of the State aid payable to the local government unit, until the amount so certified is paid.
(2) The amount paid over to the trust shall be deducted from the corresponding appropriation or apportionment of State aid payable to the local government unit and shall not obligate the State to make, nor entitle the local government unit to receive, any additional appropriation or apportionment. The obligation of the State Treasurer to make payments to the trust or trustee and the right of the trust or trustee to receive those payments shall be subject and subordinate to the rights of holders of qualified bonds issued or to be issued pursuant to P.L.1976, c.38 (C.40A:3-1 et seq.).
(3) In those instances where the local government units are municipal or county sewerage, utility or improvement authorities created pursuant to P.L.1946, c.138 (C.40:14A-1 et seq.) or P.L.1957, c.183 (C.40:14B-1 et seq.), the trust may require the municipalities or counties which receive service or other benefits from the districts or authorities to enter into service contracts or other contractual arrangements under which they would be required to make payments which would satisfy any deficiencies in the revenues of the districts or authorities to repay the loans made by the trust, which contracts would be pledged to secure the payment of the loans of the trust.
b. Whenever a local government unit, public water utility, or other person covenants or pledges to or secures the payment of its obligations to the trust by, in whole or in part, certain revenues of the local government unit, public water utility, or other person derived by the local government unit from the imposition of rates, fees and charges, and if payments by another local government unit, public water utility, or other person under a service contract or other contractual arrangement are pledged to the payment of the obligations, the other local government unit, public water utility, or other person, fails or is unable to pay in full when due any of the obligations and the State aid revenues, if applicable, for any reason have not been made available for the payment of the obligations or have not been made available in sufficient amounts to pay the obligations in full, the trust is authorized during the period of such failure to cause the local government unit, public water utility, or other person, in accordance with the covenants or pledges established in any loan or other agreement relating thereto, to establish and collect rates, fees and charges in the amounts required to pay the obligations in accordance with the covenants or pledges established in the loan or other agreement relating thereto.
c. In the event that a local government unit or public water utility, consortia thereof or private entity receiving a loan from the trust fails or is unable to pay to the trust in full when due any obligations of the local government unit or public water utility, consortia thereof, or private entity to the trust, the trust shall have the authority to exercise any and all recourses available to it under the law in an effort to recover any amounts owed to the trust.
All State agencies and governmental units, notwithstanding any contrary provision of law, may lease, lend, grant or convey to the trust at its request upon any terms and conditions as the governing body or other proper authorities of the State agencies or governmental units may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the authorizing ordinance of the governing body concerned, any real property or interest which may be necessary or convenient to the effectuation of the purposes of the trust.
b. Upon default, the trustee may, and upon written request of the holders of 25 percent in principal amount of the bonds, notes or other obligations of the trust of a particular issue then outstanding shall, in the trustee's own name:
(1) By suit, action or proceeding enforce all rights of the holders of bonds, notes or other obligations of the issue, to require the trust to carry out any other agreements with the holders of the bonds, notes or other obligations of the issue and to perform its duties under P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4);
(2) Bring suit upon the bonds, notes or other obligations of the issue;
(3) By action or suit, require the trust to account as if it were the trustee of an express trust for the holders of the bonds, notes or other obligations of the issue;
(4) By action or suit, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of the bonds, notes or other obligations of the issue;
(5) Sell or otherwise dispose of bonds and notes of local government units, public water utilities, or other persons pledged pursuant to resolution or trust indenture for benefit of holders of bonds, notes, or other obligations of the issue on any terms as resolution or trust indenture may provide;
(6) By action or suit, foreclose any mortgage pledged pursuant to the resolution or trust indenture for the benefit of the holders of the bonds, notes or other obligations of the issue;
(7) Declare all bonds, notes or other obligations of the issue due and payable, and if all defaults are made good, then with the consent of the holders of 50 percent of the principal amount of the bonds, notes or other obligations of the issue then outstanding, to annul the declaration and its consequences.
c. The trustee shall, in addition to the foregoing, have those powers necessary or appropriate for the exercise of any function specifically set forth herein or incident to the general representation of holders of bonds, notes or other obligations of the trust in the enforcement and protection of their rights.
d. The Superior Court shall have jurisdiction over any suit, action or proceeding by the trustees on behalf of the holders of bonds, notes or other obligations of the trust. The venue of any suit, action or proceeding shall be in the county in which the principal office of the trust is located.
e. Before declaring the principal of bonds, notes or other obligations of the trust due and payable as a result of a trust default on any of its bonds, notes or other obligations, the trustee shall first give 30 days' notice in writing to the trust and to the Governor, State Treasurer, President of the Senate and Speaker of the General Assembly.
For the purposes of this section, "CAP Payment" means a payment made by a project sponsor pursuant to a State or federal relief program for utility customers or a consumer assistance program.
The clean water project priority list, which shall include for each wastewater treatment system the date each project is scheduled to be certified as ready for funding, shall be in conformance with applicable provisions of the "Federal Water Pollution Control Act Amendments of 1972," Pub.L.92-500 (33 U.S.C. s.1251 et al.), and any amendatory or supplementary acts thereto, and State law, or in the case of a wastewater treatment system project for the reduction of lead in a publicly owned facility, conformance with requirements established by the Department of Environmental Protection for those projects or, in the case of a wastewater treatment system project financed through another source of funds, conformance with the requirements established by the department and the other source of funds for that project. The clean water project priority list shall include a description of each project and its purpose, impact, cost, and construction schedule, and an explanation of the manner in which priorities were established. The department shall, to the extent consistent with federal law, assign additional priority points to project applicants with an established program to employ at the project facility, or at related offices or facilities, persons who reside in the municipality in which the project is located, the service area of the project, or in surrounding municipalities that meet the criteria for State aid pursuant to P.L.1978, c.14 (C.52:27D-178 et seq.). The priority system and clean water project priority list for the ensuing fiscal year shall be submitted to the Secretary of the Senate and the Clerk of the General Assembly on or before January 15 of each year. The Secretary and the Clerk shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively. Incremental revisions or supplements to the clean water project priority list may be submitted to the Legislature as provided in subsection d. of section 9 of P.L.1985, c.334 (C.58:11B-9).
(2) The commissioner shall set forth a clean water project eligibility list for long-term funding by the trust and shall include the aggregate amount of funds to be authorized for these purposes. The clean water project eligibility list shall consist of clean water project priority list projects certified by the department that have commenced construction and demonstrated a high likelihood of construction completion on or before the end of the ensuing fiscal year. On or before May 15 of each year, the trust shall submit the clean water project eligibility list for the ensuing fiscal year, including any revision thereof or supplement thereto, to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration. On or before October 15 of each year the trust may submit an additional clean water project eligibility list, to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration.
b. The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee shall, either individually or jointly, consider the legislation containing the clean water project eligibility list, and shall report the legislation, together with any modifications, out of committee for consideration by each House of the Legislature. On or before July 1 of each year, the Legislature shall approve an appropriations act containing the clean water project eligibility list, including any amendatory or supplementary provisions thereto, which act shall include the authorization of an aggregate amount of funds of the trust to be expended for long-term loans and guarantees for the specific projects, including the individual amounts therefor, on the list.
c. The trust shall not expend any money for a long-term loan or guarantee during a fiscal year for any wastewater treatment system project unless the expenditure is authorized pursuant to an appropriations act as provided in the provisions of this section, or as otherwise set forth in an appropriations act.
d. The trust shall submit to the Secretary of the Senate and the Clerk of the General Assembly on or before January 15 of each year a report which shall identify the wastewater treatment system projects financed during the prior fiscal year, including a project description, the amount of the loan provided for each project, and the duration of each loan.
(2) The commissioner shall set forth a drinking water project eligibility list for long-term funding by the trust and shall include the aggregate amount of funds to be authorized for these purposes. The drinking water project eligibility list shall consist of drinking water project priority list projects certified by the department that have commenced construction and demonstrated a high likelihood of construction completion on or before the end of the ensuing fiscal year. On or before May 15 of each year, the trust shall submit the drinking water project eligibility list for the ensuing fiscal year, including any revision thereof or supplement thereto, to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration. On or before October 15 of each year the trust may submit an additional drinking water project eligibility list, to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration.
b. The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee shall, either individually or jointly, consider the legislation containing the drinking water project eligibility list, and shall report the legislation, together with any modifications, out of committee for consideration by each House of the Legislature. On or before July 1 of each year, the Legislature shall approve an appropriations act containing the drinking water project eligibility list, including any amendatory or supplementary provisions thereto, which act shall include the authorization of an aggregate amount of funds of the trust to be expended for long-term loans and guarantees for the specific water supply projects, including the individual amounts therefor, on the list.
c. The trust shall not expend any money for a long-term loan or guarantee during a fiscal year for any water supply project unless the expenditure is authorized pursuant to an appropriations act as provided in the provisions of this section, or as otherwise set forth in an appropriations act.
d. The trust shall submit to the Secretary of the Senate and the Clerk of the General Assembly on or before January 15 of each year a report which shall identify the water supply projects financed during the prior fiscal year, including a project description, the amount of the loan provided for each project, and the duration of each loan.
b. The Commissioner of Transportation shall set forth a Transportation Financing Program Project Eligibility List for long-term funding by the trust and shall include the aggregate amount of funds to be authorized for these purposes. The Transportation Financing Program Project Eligibility List shall consist of Transportation Financing Program Project Priority List projects certified by the Department of Transportation that have commenced construction and demonstrated to the department a high likelihood of construction completion on or before the end of the ensuing fiscal year. On or before May 15 of each year, the trust shall submit the Transportation Financing Program Project Eligibility List, including any amendatory or supplementary provisions thereto, to the Legislature to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Transportation Committee and the Assembly Transportation and Independent Authorities Committee, or their successors, for their respective consideration. The Secretary and the Clerk shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively.
The Senate Transportation Committee and the Assembly Transportation and Independent Authorities Committee shall, either individually or jointly, consider the legislation containing the Transportation Program Project Eligibility List, and shall report the legislation, together with any modifications, out of committee for consideration by each House of the Legislature. On or before July 1 of each year, the Legislature shall approve an appropriations act containing the Transportation Program Project Eligibility List, including any amendatory or supplementary provisions thereto, which act shall include the authorization of an aggregate amount of funds of the trust to be expended for long-term loans and guarantees for the specific transportation projects, aviation projects, and marine projects, including the individual amounts therefor, on the list.
c. On or before October 15 of each year, the trust may submit an amended Transportation Financing Program Project Eligibility List to be introduced in each House in the form of legislative appropriations bills for approval by the Legislature on or before January 15 of the following calendar year in the manner set forth in subsection a. and subsection b. of this section.
d. The trust shall not expend any money for a long-term loan or guarantee during a fiscal year for any transportation project, aviation project, or marine project unless the expenditure is authorized pursuant to an appropriations act of the current or three immediate preceding fiscal years as provided in the provisions of this section, or as otherwise set forth in an appropriations act.
e. The trust shall submit to the Secretary of the Senate and the Clerk of the General Assembly on or before January 15 of each year a report which shall identify the transportation projects, aviation projects, and marine projects financed during the prior fiscal year, including a project description, the amount of the loan provided for each project, and the duration of each loan.
f. The source of projects for the Transportation Financing Program Project Priority List and the Transportation Financing Program Project Eligibility List shall be: (1) applications made by counties and municipalities seeking aid through the State Transportation Infrastructure Bank Fund in accordance with section 25 of P.L.1984, c.73 (C.27:1B-25) and the procedures established therein for the allocation of State aid to counties and municipalities through the local aid program, and (2) eligible projects within the most recent 10-year Statewide Transportation Improvement Program as issued by the Department of Transportation. Projects deriving from either of these sources shall identify a consistent source of revenue that will be utilized to repay any loan financing provided by the trust either from the project itself or from the sponsoring local government unit or consortia thereof that will be receiving assistance.
"Bank" means the New Jersey Infrastructure Bank, created pursuant to section 4 of P.L.1985, c.334 (C.58:11B-4).
"Bonds" mean the bonds issued, or authorized to be issued, by the bank pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.) and in compliance with the bank's authority pursuant to, and subject to the same conditions as provided in, P.L.1985, c.334 (C.58:11B-1 et seq.) or P.L.1997, c.224 (C.58:11B-10.1 et al.), as applicable.
"Commissioner" means the Commissioner of Environmental Protection.
"Community Hazard Assistance Mitigation Program" means the program established by the bank pursuant to sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.).
"Fund" means the Community Hazard Assistance Mitigation Program Revolving Loan Fund established pursuant to section 3 of P.L.2023, c.63 (C.58:11B-10.6).
"Hazard mitigation and resilience project" means a hazard mitigation and resilience project undertaken by the State, a local government unit, or a nonprofit organization in accordance with the provisions of the STORM Act and a State or local hazard mitigation plan.
"Loan origination fee" means the fee charged by the bank in connection with services provided to a sponsor of a hazard mitigation and resilience project pursuant to the sponsor's participation in the Community Hazard Assistance Mitigation Program. A project sponsor may finance any portion of the loan origination fee through the bank by a hazard mitigation and resilience project assistance loan to pay a portion of the costs incurred by the bank in the implementation of the Community Hazard Assistance Mitigation Program.
"Local government unit" means any county or municipality, or any agency, instrumentality, authority, or corporation of any county or municipality, or any other entity eligible to receive federal funds pursuant to the STORM Act.
"Nonprofit organization" means a private nonprofit organization that is exempt from federal taxation pursuant to section 501 (c)(3) of the federal Internal Revenue Code, 26 U.S.C. s.501 (c)(3).
"Other assistance" means the same as the same as the term is defined in section 3 of P.L.1985, c.334 (C.58:11B-3).
"State Office of Emergency Management" means the Office of Emergency Management in the Division of State Police in the Department of Law and Public Safety.
"STORM Act" means the "Safeguarding Tomorrow through Ongoing Risk Mitigation Act," Pub. L. 116-284, as amended or superseded, and any rules, regulations, or guidance adopted pursuant thereto by the Federal Emergency Management Agency.
b. (1) The State Office of Emergency Management, in consultation with the commissioner, shall set forth a Community Hazard Assistance Mitigation Program Project Priority List for funding by the bank for each fiscal year and shall include: (a) the aggregate amount of funds of the bank to be authorized for these purposes; (b) a description of each hazard mitigation and resilience project; and (c) an explanation of the manner in which projects are ranked.
The project priority list for the ensuing fiscal year shall be submitted to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) on or before January 15 of each year. The Senate Secretary and the Clerk of the General Assembly shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively.
(2) Any hazard mitigation and resilience project, or sponsor thereof, not identified in the project priority list pursuant to paragraph (1) of this subsection shall not be eligible for a loan from the Community Hazard Assistance Mitigation Program Revolving Loan Fund. The bank may revise or supplement the project priority list no more than four times during the fiscal year and shall submit the revised list to the Legislature when the revisions are made.
No funds may be disbursed pursuant to this subsection for hazard mitigation and resilience project activities prior to certification in writing, from the bank to the State Treasurer, that the project activities satisfy the provisions of the STORM Act, sections 1 through 8 of P.L.2023, c.63 (C.58:11B-20.3 et al.), and P.L.1985, c.334 (C.58:11B-1 et seq.).
Any short-term or temporary loans made by the bank may only be made in advance of an anticipated long-term hazard mitigation and resilience project loan. Any such short-term or temporary loan made shall mature no later than the last day of the fifth succeeding fiscal year following the closing date on which the short-term or temporary loan was made by the bank. Any short-term or temporary loan made by the bank pursuant to this subsection may mature in a shorter period of time as may be necessary to align with construction completion. With respect to any short-term or temporary loan for planning, design, and construction expenses, the bank may authorize one short-term supplemental loan for residual expenses thereof upon receipt by the bank from the State Office of Emergency Management of a certification that states that the time required to complete construction of the project exceeds the maximum maturity date of the short-term or temporary loan. Any such short-term supplemental loan shall not exceed in duration the last day of the third succeeding fiscal year following the loan closing of the short-term supplemental loan.
c. The State Office of Emergency Management, in consultation with the commissioner, shall set forth a Community Hazard Mitigation Assistance Program Project Eligibility List for long-term funding by the bank and shall include the aggregate amount of funds to be authorized for these purposes.
On or before May 15 of each year, the bank shall submit the Community Hazard Mitigation Assistance Program Project Eligibility List to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1) to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration. The Senate Secretary and the Clerk of the General Assembly shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively.
The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee shall, either individually or jointly, consider the legislation containing the Community Hazard Mitigation Assistance Program Project Eligibility List, and shall report the legislation, together with any modifications, out of committee for consideration by each House of the Legislature. On or before July 1 of each year, the Legislature shall approve an appropriations act containing the Community Hazard Mitigation Assistance Program Project Eligibility List, which act shall include the authorization of an aggregate amount of funds of the bank to be expended for long-term loans and guarantees for the hazard mitigation and resilience projects, including the individual amounts therefor, on the list.
On or before October 15 of each year the bank may submit an additional Community Hazard Mitigation Assistance Program Project Eligibility List, to be introduced in each House in the form of legislative appropriations bills, which shall be referred to the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors, for their respective consideration. The Secretary of the Senate and the Clerk of the General Assembly shall cause the date of submission to be entered upon the Senate Journal and the Minutes of the General Assembly, respectively.
d. The State Office of Emergency Management shall consult with the commissioner when developing the priority system pursuant to subsection a. of this section, the project priority list pursuant to subsection b. of this section, and the project eligibility list pursuant to subsection c. of this section, however, responsibility for determining assistance priorities and carrying out oversight activities shall be the responsibility of the State Office of Emergency Management.
e. The bank shall not expend any money for a loan or guarantee during a fiscal year for any hazard mitigation or resilience project unless the expenditure is authorized pursuant to an appropriations act of the current or three immediate preceding fiscal years as provided in the provisions of this section, or as otherwise set forth in an appropriations act.
f. The bank shall submit to the Secretary of the Senate and the Clerk of the General Assembly on or before January 15 of each year a report which shall identify the hazard mitigation and resilience projects financed during the prior fiscal year, including a project description, the amount of the loan provided for each project, and the duration of each loan.
The financial plan shall also set forth a complete operating and financial statement covering its proposed operations during the forthcoming fiscal year, including amounts of income from all sources, and the uniform schedule of fees and charges established by the trust pursuant to subsection o. of section 5 of P.L.1985, c.334 (C.58:11B-5), and the amounts to be derived therefrom, and shall summarize the status of each wastewater treatment system project for which loans or guarantees have been made by the trust, and shall describe major impediments to the accomplishment of the planned wastewater treatment system projects.
The financial plan shall also set forth a complete operating and financial statement covering its proposed operations during the forthcoming fiscal year, including amounts of income from all sources, and the uniform schedule of fees and charges established by the trust pursuant to subsection o. of section 5 of P.L.1985, c.334 (C.58:11B-5), and the amounts to be derived therefrom, and shall summarize the status of each water supply project for which loans or guarantees have been made by the trust, and shall describe major impediments to the accomplishment of the planned water supply projects.
b. Unless the financial plan as described in the submission is approved by adoption of a concurrent resolution of both houses within the time period prescribed in this subsection, the financial plan shall be deemed disapproved and the trust shall not undertake any of the proposed activities contained therein. The President and the Speaker shall cause a concurrent resolution of approval of the trust's financial plan to be placed before the members of the respective houses for a recorded vote within the time period. The time period shall commence on the day of submission and expire on June 30 of the year of submission.
b. Unless the financial plan as described in the submission is approved by adoption of a concurrent resolution of both houses within the time period prescribed in this subsection, the financial plan shall be deemed disapproved and the trust shall not undertake any of the proposed activities contained therein. The President and the Speaker shall cause a concurrent resolution of approval of the trust's financial plan to be placed before the members of the respective houses for a recorded vote within the time period. The time period shall commence on the day of submission and expire on June 30 of the year of submission.
The financial plan shall also set forth a complete operating and financial statement covering proposed operations through the fund during the forthcoming fiscal year, including amounts of income from all sources, and the uniform schedule of fees and charges established by the trust pursuant to subsection o. of section 5 of P.L.1985, c.334 (C.58:11B-5), and the amounts to be derived therefrom, and shall summarize the status of each transportation project, aviation project, and marine project for which loans or guarantees have been made by the trust, and shall describe major impediments to the accomplishment of the planned transportation projects, aviation projects, or marine projects.
b. On or before June 30 of each year the Legislature may reject the financial plan through the adoption by both houses of a concurrent resolution. If the Legislature rejects the financial plan, the project list shall be removed from the annual appropriations act and the trust shall not undertake any of the proposed activities contained therein. If the Legislature takes no action on or before June 30, the financial plan shall be deemed approved.
c. The financial plan for the State Transportation Infrastructure Bank Fund shall not be eligible for inclusion in a consolidated financial plan as established in section 27 of P.L.1997, c.224 (C.58:11B-22.2).
The financial plan shall also set forth a complete operating and financial statement covering the proposed operations of the Community Hazard Mitigation Assistance Program during the forthcoming fiscal year, including amounts of income from all sources, and the uniform schedule of fees and charges established by the bank, and the amounts to be derived therefrom. The financial plan shall also summarize the status of each hazard mitigation and resilience project for which loans or guarantees have been made by the bank, and shall describe major impediments to the accomplishment of the planned hazard mitigation and resilience projects.
b. On or before June 30 of each year, the Legislature may reject the financial plan through the adoption by both houses of a concurrent resolution. If the Legislature takes no action on or before June 30, the financial plan shall be deemed approved.
c. The financial plan required by this section shall not be eligible for inclusion in a consolidated financial plan as established in section 27 of P.L.1997, c.224 (C.58:11B-22.2).
b. No funds shall be expended by the trust for its annual operating expenses unless appropriated by law to the trust. Unless required to be otherwise applied pursuant to law, funds generated by the operation of the trust, including, but not limited to: proceeds from the sale of the trust's bonds, notes or other obligations; revenues derived from investments by the trust; loan repayments from local government units, public water utilities, or other persons; and fees and charges levied by the trust, may thereafter be applied in accordance with the provisions of P.L.1985, c.334 (C.58:11B-1 et seq.), P.L.1997, c.224 (C.58:11B-10.1 et al.), or sections 22 and 34 through 38 of P.L.2016, c.56 (C.58:11B-10.3 through C.58:11B-10.5, C.58:11B-20.2, C.58:11B-22.3, and C.58:11B-22.4) for any corporate purpose of the trust without appropriation; except that the funds shall only be used to make loans or guarantees approved by the Legislature in accordance with the provisions of sections 20, 21, and 22 of P.L.1985, c.334 (C.58:11B-20, C.58:11B-21 and C.58:11B-22), sections 24, 25, and 26 of P.L.1997, c.224 (C.58:11B-20.1, C.58:11B-21.1 and C.58:11B-22.1), or sections 35 through 37 of P.L.2016, c.56 (C.58:11B-10.5, C.58:11B-20.2, and C.58:11B-22.3).
c. The trust shall not apply for federal funds, including funds which are authorized pursuant to the "Federal Water Pollution Control Act Amendments of 1972," Pub.L. 92-500 (33 U.S.C. s.1251 et seq.), and any amendatory or supplementary acts thereto, except the trust is expressly authorized to apply, in consultation with the Department of Environmental Protection, for funds under the "Water Infrastructure Finance and Innovation Act," (WIFIA) 33 U.S.C. s.3901 et seq. as amended or superseded, and, in consultation with the State Office of Emergency Management in the Department of Law and Public Safety for funds under the "Safeguarding Tomorrow Through Ongoing Risk Mitigation (STORM) Act," Pub.L. 116-284 (42 U.S.C. s. 5135) as amended or superseded, and with notice to the Department of Transportation, for funds under the Transportation Infrastructure Finance and Innovation Act (TIFIA) 23 U.S.C. 601 through 23 U.S.C. 609 as amended or superseded, and provisions of the Moving Ahead for Progress in the 21st Century Act (MAP-21) Pub. L. 112-141, the Fixing America's Surface Transportation Act (FAST Act) Pub. L. 114-94, the Transportation Equity Act for the 21st Century (TEA-21) Pub. L. 105-178, the Safe, Accountable, Flexible and Efficient Transportation Equity Act: a Legacy for User ("SAFETEA-LU") Pub. L. 109-59, and the Rail Safety Improvement Act of 2008 Pub. L. 110-432, or any subsequent law concerning federal surface transportation programs as applicable.
The trust, with the concurrence of the Commissioner of Environmental Protection, may receive, accept or utilize moneys received from local government units as repayments of principal and interest on loans made from the State Revolving Fund Accounts established pursuant to section 1 of P.L.1988, c.133.
Repayments of principal and interest on all federal funds for which the New Jersey Infrastructure Bank is expressly permitted to apply shall be the responsibility of the borrowers of New Jersey Infrastructure Bank loans issued utilizing those federal funds, and in no way shall it be the responsibility of the State of New Jersey or the Department of Transportation.
a. The trust shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants selected by the State Treasurer and the cost thereof shall be considered as an expense of the trust and a copy thereof shall be filed with the Governor, State Treasurer, Senate and General Assembly. Notwithstanding the provision of any law to the contrary, the State Auditor or his legally authorized representative may examine the accounts or books of the trust.
b. All officers, departments, boards, units, divisions and commissions of the State are authorized to render any services to the trust as may be within the area of their respective governmental functions as fixed or established by law, and as may be requested by the trust. The cost and expense of those services shall be met and provided for by the State governmental units rendering the services.
b. The trust shall adopt rules and regulations requiring any entity, which receives a loan, grant, or guarantee for a project to pay not less than the prevailing wage rate to workers employed in the performance of any construction contract for that project, in accordance with the rate determined by the Commissioner of Labor and Workforce Development pursuant to P.L.1963, c.150 (C.34:11-56.25 et seq.).
This act shall be known and may be cited as the "Safe Drinking Water Act."
The Legislature finds and declares that it is a paramount policy of the State to protect the purity of the water we drink and that the Department of Environmental Protection shall be empowered to promulgate and enforce regulations to purify drinking water by filtration or such other treatment method as it may require, prior to the distribution of said drinking water to the public; that the maintenance of high-quality potable water is essential in order to safeguard the health and welfare of the people of the State; that the Federal Safe Drinking Water Act provides a comprehensive framework, at a minimum, for establishing standards, providing technical assistance, and for regulating the collection, treatment, monitoring, storage, and distribution of potable water, and for consolidating and improving existing State law regarding potable water; and that it is in the best interests of the people of the State for the State, through its Department of Environmental Protection, to assume primary enforcement responsibility under the Federal Safe Drinking Water Act.
a. "Administrator" means the Administrator of the United States Environmental Protection Agency or his authorized representative;
b. "Contaminant" means any physical, chemical, biological or radiological substance or matter in water;
c. "Commissioner" means the Commissioner of Environmental Protection or his designated representative;
d. "County" means any county or any agency or instrumentality of one or more thereof;
e. "Department" means the Department of Environmental Protection;
f. "Federal act" means the Safe Drinking Water Act, P.L.93-523, 42 U.S.C. s.300 et al.;
g. "Federal agency" means any department, agency, or instrumentality of the United States;
h. "Municipality" means any city, town, township, borough or village or any agency or instrumentality of one or more thereof;
i. "National primary drinking water regulations" means primary drinking water regulations promulgated by the administrator pursuant to the federal act;
j. "Person" means any individual, corporation, company, firm, association, partnership, municipality, county, State agency or federal agency;
k. "Primary drinking water regulation" means a regulation which:
(1) Applies at a minimum to public water systems;
(2) Specifies contaminants which, in the judgment of the commissioner, may have any adverse effect on the health of persons;
(3) Specifies for each such contaminant either: (a) a maximum contaminant level if, in the judgment of the commissioner, it is economically and technologically feasible to ascertain the level of such contaminant in water in public water systems, or (b) if, in the judgment of the commissioner, it is not economically or technologically feasible to ascertain the level of such contaminant, each treatment technique known to the commissioner which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of section 4 of P.L.1977, c.224 (C.58:12A-4);
(4) Contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels, including quality control, sampling frequencies, and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system, and requirements as to: (a) the minimum quality of water which may be taken into the system, and (b) siting for new facilities for public water systems;
l. "Public water system" means a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year. Such term includes: (1) any collection, treatment, storage and distribution facilities under control of the operator of such system and used primarily in connection with such system, and (2) any collection or pre-treatment storage facilities not under such control which are used primarily in connection with such system. "Public community water system" means a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents;
m. "State agency" means any department, agency or instrumentality of this State or of this State and any other state or states;
n. "Supplier of water" means any person who owns or operates a public water system;
o. "Maximum contaminant level" means the maximum permissible level of a contaminant in water which is delivered to the free-flowing outlet of the ultimate user of a public water system or other water system to which State primary drinking water regulations apply, except in the case of turbidity, where the maximum permissible level is measured at the point of entry to the distribution system. Contaminants added to the water under circumstances controlled by the user, except those resulting from corrosion of piping and plumbing caused by water quality, are excluded from this definition;
p. "Nonpublic water system" means a water system that is not a public water system;
q. "Sanitary survey" means an on-site review of the water source, facilities, equipment, operation and maintenance of a public or nonpublic water system for the purpose of evaluating the adequacy of the source, facilities, equipment, operation and maintenance for producing and distributing safe drinking water with adequate pressure and volume;
r. "Secondary drinking water regulation" means a regulation applying to one or more water systems, and which specifies the maximum contaminant levels that are required to protect the public welfare; such regulations may apply to any contaminant in drinking water: (1) which may adversely affect the taste, odor, or appearance of such water and consequently may cause a substantial number of persons served by such water systems to discontinue their use, or (2) which may otherwise adversely affect the public welfare;
s. "Water system" means a system for providing potable water to any person.
(1) State primary drinking water regulations that at any given time shall be no less stringent than national regulations in effect at that time;
(2) State secondary drinking water regulations; and
(3) other regulations to protect potable waters, regulate public and nonpublic water systems, and carry out the intent of the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.) in any one or more areas of the State requiring a particular safe drinking water program.
b. Subject to section 5 of P.L.1977, c.224 (C.58:12A-5), State primary drinking water regulations shall apply to each public water system in the State, except that such regulations shall not apply to a public water system:
(1) Which consists only of distribution and storage facilities and which does not have any collection and treatment facilities;
(2) Which obtains all of its water from, but is not owned or operated by, a public water system to which such regulations apply;
(3) Which does not sell water to any person; and
(4) Which does not provide water for potable purposes to any carrier which conveys passengers in interstate commerce.
c. The commissioner shall adopt and implement adequate procedures, promulgate appropriate rules and regulations, and issue such orders as are necessary for the enforcement of State primary drinking water regulations and for the provision of potable water of adequate volume and pressure; such regulations and procedures to include but not be limited to:
(1) Monitoring and inspection procedures;
(2) Maintenance of an inventory of public water systems in the State;
(3) A systematic program for conducting sanitary surveys of public water systems throughout the State or in a part thereof, whenever the commissioner determines that such surveys are necessary or advisable;
(4) The establishment and maintenance of a program for the certification of laboratories conducting analytic measurements of drinking water contaminants specified in the State primary and secondary drinking water regulations; and the assurance of the availability to the department of laboratory facilities certified by the administrator and capable of performing analytic measurements of all contaminant specified in the State primary and secondary drinking water regulations;
(5) The establishment and maintenance of programs concerning plans and specifications for the design, construction and operation of water systems, which programs:
(a) require all such plans and specifications to be first approved by the department before any work thereunder shall be commenced;
(b) assure that all new public water systems have adequate technical, managerial and financial capacity to comply with the provisions of the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.), and all regulations promulgated by the department pursuant to that act prior to approval of such systems to distribute water for potable purposes;
(c) assure that all water systems will comply with any rules and regulations of the department; and
(d) assure and certify compliance with the State primary drinking water regulations or such requirements of the State secondary drinking water regulations as the commissioner deems applicable, and will deliver water with sufficient quality, volume and pressure to the users of such systems.
d. The commissioner shall keep such records and make such reports with respect to the duties, powers and responsibilities of the commissioner under subsections a. and c. of this section as may be required by regulations established by the administrator pursuant to the federal act.
e. The commissioner may require any public water system to install, use, and maintain such monitoring equipment and methods, to perform such sampling, to maintain and retain such records of information from monitoring and sampling activities, to submit such reports of monitoring and sampling results, and to provide such other information as he may require to assist in the establishment of regulations under the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.), or to determine compliance or noncompliance with the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.) or with regulations promulgated pursuant to the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.).
f. The commissioner shall have the right to enter any premises upon presentation of appropriate credentials during regular business hours, in order to test, inspect or sample any feature of a public water system, and in order to inspect, copy or photograph any monitoring equipment or records required to be kept under provisions of P.L.1977, c.224 (C.58:12A-1 et seq.).
g. (Deleted by amendment, P.L.1999, c.176).
The commissioner may authorize variances or exemptions from the regulations issued pursuant to section 4. of this act under conditions and in such manner as he deems necessary and desirable; provided, however, that such variances or exemptions shall be granted only under conditions and in a manner which are no less stringent than the conditions under, and the manner in which, variances and exemptions may be granted under the Federal act. Notwithstanding the foregoing variances may be granted for no longer than 5 years, subject to one or more renewals of no longer than 5 years each.
The commissioner, upon receipt of information that a contaminant which is present in or is likely to enter a water system may present an imminent and substantial endangerment to the health of persons, may take such actions as he may deem necessary in order to protect the health of such persons. Such actions may include, but shall not be limited to: a. issuing such orders as may be necessary to protect the health of persons who are or may be users of such system, including travelers; and b. commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction.
The commissioner shall promulgate an adequate plan for the provision of safe drinking water under emergency circumstances. When, in the judgment of the commissioner, emergency circumstances exist in the State with respect to a need for safe drinking water, he may take such actions, including the issuance of orders, as he may deem necessary in order to provide such water where it otherwise would not be available.
Whenever a public water supply system: a. is not in compliance with the State primary drinking water regulations; b. fails to perform monitoring required by regulations adopted by the commissioner; or, c. fails to comply with the requirements prescribed by a variance or exemption, the supplier of water shall as soon as practicable give notice of that fact and of the nature, and extent and possible health effects of such fact to the municipal and county health departments, the department, the administrator, and communications media serving the area served by the system of such fact. Such notice also shall be given by the supplier of water by publication in a newspaper of general circulation, as determined by the commissioner, within the area served by such public water system at least once every 3 months so long as the violation continues. If the water bills of a public water system are issued more often than once every 3 months, such notice shall also be included in at least one water bill of the public water system for each customer every 3 months; if the public water system issues its water bills less often than once every 3 months, such notice shall be included in each of the water bills issued by the system for each customer; provided, however, that the commissioner may prescribe by regulations alternative notice requirements.
b. The notice required pursuant to subsection a. of this section shall be:
(1) provided as soon as possible, but in no case later than one hour after the public water system learns of the emergency or other condition;
(2) given via both telephone and electronic mail; and
(3) issued in addition to any other notice required by State or federal law.
c. The notice provided pursuant to subsection a. of this section shall contain:
(1) the name of the public water system affected;
(2) the geographical area affected;
(3) the date of the occurrence giving rise to the boil water notice;
(4) the consumer corrective measures to be taken by consumers of the water; and
(5) a telephone number where the mayor, the municipal clerk, or an authorized designee, and customers may reach an appropriate party to whom questions or other concerns about the boil water notice or the situation necessitating issuance of the notice may be addressed.
d. Upon rescission of the boil water notice, the owner or operator of the public water system shall provide notice to the mayor, municipal clerk , or an authorized designee of each affected municipality that receives water from the public water system that the boil water notice has been rescinded. This notice shall be provided via both telephone and electronic mail.
e. For the purposes of this section:
"Boil water notice" means a Tier 1 Public Notice required pursuant to the United States Environmental Protection Agency's National Primary Drinking Water Regulations at Part 141, subpart Q of title 40, Code of Federal Regulations.
"Public transient noncommunity water system" means a public water system that is not a public community water system or a public nontransient noncommunity water system and that serves at least 25 transient individuals for at least 60 days in any given calendar year.
"Public water system" means the same as the term is defined in section 3 of P.L.1977, c.224 (C.58:12A-3), except that it shall not include a public transient noncommunity water system.
a. Perform any and all acts necessary to carry out the purposes and requirements of this act relating to the adoption and enforcement of any regulations authorized pursuant to this act;
b. Administer and enforce the provisions of this act and all rules, regulations, and orders promulgated, issued, or effective hereunder;
c. Enter into agreements, contracts, or cooperative arrangements, under such terms and conditions as he deems appropriate, with the Department of Health and Senior Services and any other state agency, federal agencies, municipalities, counties, educational institutions, municipal or county health departments, or other organizations or individuals;
d. Receive financial and technical assistance from the federal government and other public or private agencies;
e. Participate in related programs of the federal government, other states, interstate agencies, or other public or private agencies or organizations;
f. Establish adequate fiscal controls and accounting procedures to assure proper disbursement of and accounting for funds appropriated or otherwise provided for the purpose of carrying out the provisions of this act;
g. Delegate those responsibilities and duties as deemed appropriate for the purpose of administering the requirements of this act;
h. Establish and collect fees, in accordance with a fee schedule adopted as a rule or regulation, for conducting inspections and laboratory analyses and certifications as may be necessary;
i. Prescribe such regulations and issue such orders as are necessary or appropriate to carry out his functions under this act;
j. Conduct research, investigations, experiments, demonstrations, surveys, and studies relating to the causes, effects, extent, prevention, and control of contaminants in drinking water;
k. Provide for the education of the public as to the causes, effects, extent, prevention, and control of contaminants in drinking water;
l. Collect and make available, through publications, a data management system and other appropriate means, the results of and other information, including appropriate recommendations by the institute in connection therewith, pertaining to such research and other activities;
m. Cooperate with and contract with other public and private agencies, institutions, and organizations and with any industries involved, in the preparation and conduct of such research and other activities;
n. Review treatment methods used for removal of contaminants from drinking water;
o. Provide for the education and training of departmental personnel in those areas relating to the causes, effects, extent, prevention and control of contaminants in drinking water;
p. Establish and collect reasonable fees, in accordance with a fee schedule adopted as a rule or regulation, for the estimated costs of administering and enforcing the programs pursuant to this amendatory and supplementary act, to the extent that the costs are not available from the fund, including but not limited to conducting inspections, laboratory analyses and certifications as may be necessary;
q. The authority to collect fees pursuant to this section may be delegated by the commissioner to the appropriate county agency consistent with a delegation, pursuant to the provisions of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.), of any authority to administer the provisions of this act;
r. Administer State and federal grants and other forms of financial assistance to municipalities, counties and other political subdivisions, or any recipient approved by the commissioner according to the terms and conditions approved by him in order to meet the goals and objectives of this act. The commissioner shall establish, charge and collect reasonable loan origination and annual administrative fees, which shall be based upon, and shall not exceed the estimated cost of processing, monitoring and administering the financial assistance programs. Said fees shall be deposited in a separate fund, administered by the Department of Environmental Protection, and the funds used for the sole purpose of administering the financial assistance programs authorized and established by State law, including, but not limited to, the costs of administering the "Drinking Water - State Revolving Fund Accounts".
(1) Issue an administrative enforcement order requiring any such person to comply in accordance with subsection b. of this section;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) Levy a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the administrative enforcement order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, for which a civil action has been commenced and brought under this subsection;
(4) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to assess a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, assess civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may assess any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final administrative enforcement order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final administrative enforcement order after the expiration of the 35-day period. Payment of the assessment is due when a final administrative enforcement order is issued or the notice becomes a final administrative enforcement order. The authority to levy a civil administrative order is in addition to all other enforcement provisions in P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto.
If any provision of this act or the application thereof to any person or circumstance is held invalid, the remainder of the act and the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. This act shall be liberally construed to effectuate the purpose and intent thereof. All rules and regulations promulgated pursuant to any statutes repealed by this act are continued in full force and effect until superseded and repealed by rules and regulations promulgated pursuant to this act.
The owner or operator of each public community water system shall undertake the periodic testing of the water provided to customers by the system in order to determine the presence of hazardous contaminants, as identified pursuant to section 2 of this amendatory and supplementary act. A schedule for the periodic testing shall be established by the commissioner within six months of the effective date of this amendatory and supplementary act and pursuant to the "Administrative Procedure Act," P.L.1968, c. 410 (C. 52:14B-1 et seq.). The tests shall be conducted during periods of representative demand by a laboratory certified by the department. The initial tests for the substances identified in subsection a. of section 2 of this amendatory and supplementary act shall be administered within 12 months of the effective date of this amendatory and supplementary act and semiannually thereafter, pursuant to the schedule established by the commissioner, unless the commissioner shall determine, on a case-by-case basis, that greater or lesser frequency of testing is necessary or sufficient to ensure the public health and safety. The tests for the substances for which maximum contaminant levels will be established pursuant to subsection b. of section 2 of this amendatory and supplementary act shall be conducted within one year of the effective date of this act and annually thereafter, unless the commissioner shall determine, on a case-by-case basis, that greater or lesser frequency of testing is necessary to ensure the public health and safety.
b. The provisions of subsection a. of this section shall apply to the first Consumer Confidence Report required to be prepared after the adoption of rules and regulations by the Department of Environmental Protection, in consultation with the Drinking Water Quality Institute, pursuant to section 2 of this act.
"Certified point-of-use water filter" means a filter that is installed at the point where water is dispensed from an outlet, and which is certified by a body accredited by the American National Standards Institute National Accreditation Board as satisfying the NSF/ANSI 53-2019 standard for lead reduction or any subsequently adopted standard that is equivalent to, or more stringent than, the NSF/ANSI 53-2019 standard for lead reduction.
"Customer" means a property owner or lessee who receives, and is required to pay, a water utility bill for water being supplied to the property.
"Lead action level" means the standard for lead in drinking water established by the United States Environmental Protection Agency, or a more stringent standard adopted by the department pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.).
"Lead service line" means the same as the term is defined in section 2 of P.L.2021, c.183 (C.58:12A-41).
"Non-paying consumer" means the lessee or primary occupant of institutional, commercial, or residential space in a system's service area, who does not receive, and is not required to pay, a water utility bill for water supplied to the property.
"Public water system" means the same as the term is defined in section 3 of P.L.1977, c.224 (C.58:12A-3).
"Seasonal rental unit" means a residential rental unit that is leased for a duration of fewer than six months each year.
"Service line" means the same as the term is defined in section 2 of P.L.2021, c.183 (C.58:12A-41).
b. Within five days of developing or updating the educational materials, the Department of Health shall:
(1) publish the notice in the New Jersey Register indicating that the educational materials have been developed or updated;
(2) make the notice available to the public on the official Internet website of the Department of Health; and
(3) transmit the notice to the Commissioner of Community Affairs, who shall also make the notice available to the public on the official Internet website of the Department of Community Affairs.
(1) an acknowledgment that the residential rental property is serviced by a lead service line or service line of unknown composition, if the landlord received such notification from a public water system pursuant to section 4 of P.L.2021, c.183 (C.58:12A-43) or any other requirement of law or regulation;
(2) a statement containing the date that the residential rental property was constructed, and that housing built before 1986 may be serviced by a lead service line or contain interior lead plumbing;
(3) a copy of any formal notice received by the landlord within the previous three years indicating that a lead action level exceedance was detected within the service area in which the residential rental property is located, unless the notice of lead action level exceedance was received more than 12 months prior to lease signing or renewal and the exceedance was subsequently corrected by the public water system;
(4) a copy of any citation for a violation of P.L.2025, c.144 (C.58:12A-12.3a et al.) that resulted in the issuance of a penalty against the landlord that was issued in the 12 months prior to lease signing or renewal; and
(5) a copy of, or instructions for accessing, the notice established pursuant to section 2 of P.L.2025, c.144 (C.58:12A-12.3b), concerning the health risks associated with lead in drinking water.
b. A landlord shall not be required to comply with the requirements of subsection a. of this section related to a lease or renewal agreement for a residential rental unit that is:
(1) located in a residential rental property that was constructed after 1986;
(2) located in a residential rental property that is serviced by a service line that has been determined by the public water system, pursuant to P.L.2021, c.183 (C.58:12A-40 et seq.), not to be a lead service line; or
(3) a seasonal rental unit.
c. Within six months of the effective date of P.L.2025, c.144 (C.58:12A-12.3a et al.), the Department of Community Affairs shall, in consultation with the Department of Environmental Protection and the Department of Health, prepare a model "Lead In Drinking Water Disclosure" statement that may be used by landlords to satisfy the requirements of this section.
d. Within five days of developing or updating the model "Lead In Drinking Water Disclosure" statement, the Department of Community Affairs shall:
(1) publish the notice in the New Jersey Register;
(2) make the notice available to the public on the official Internet website of the Department of Community Affairs; and
(3) transmit the notice to the Department of Health, who shall also make the notice available to the public on the official Internet website of the Department of Health.
e. If a lease is oral, the landlord shall provide the "Lead in Drinking Water Disclosure" statement to the tenant, or prospective tenant, as a separate notice utilizing the model notice established pursuant to subsection c. of this section. If the lease or the renewal lease is in writing, the landlord shall provide the "Lead in Drinking Water Disclosure" statement required pursuant to this section either as a separate notice utilizing the model notice established pursuant to subsection c. of this section, or the "Lead In Drinking Water Disclosure" statement may be included in the written lease or the written renewal lease, provided that the notice is a separate rider, individually signed or otherwise acknowledged by the tenant and landlord, and written in not less than 12-point typeface.
f. The provisions of P.L.2025, c.144 (C.58:12A-12.3a et al.), shall not be construed to impose a duty upon a licensee of the New Jersey Real Estate Commission to provide the disclosure statement required pursuant to P.L.2025, c.144 (C.58:12A-12.3a et al.) to the tenant of a property for which the licensee is not the landlord.
"Landlord" means the same as that term is defined in section 2 of P.L.1975, c.310 (C.46:8-44).
"Lead action level" means the standard for lead in drinking water established by the United States Environmental Protection Agency, or a more stringent standard adopted by the department pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.).
"Local health agency" means the same as that term is defined in section 3 of P.L.1975, c.329 (C.26:3A2-3).
The written notice shall be sent as soon as practicable, but no later than 10 calendar days after the public water system confirms that there has been an exceedance of the lead action level and the written notice has been approved by the Department of Environmental Protection. The written notice shall:
(1) clearly state that the public water system is in exceedance of the lead action level;
(2) explain what the lead action level is and the measurement process that the public water system is required to perform to monitor drinking water for lead;
(3) provide additional information on the possible sources of lead in drinking water, the health effects of drinking water with elevated levels of lead, and measures a consumer can take to reduce or eliminate lead in drinking water; and
(4) state, in easily legible type, the responsibility of a landlord to distribute the written notice to every tenant pursuant to section 3 of P.L.2021, c.82 (C.58:12A-12.6).
b. The notice required pursuant to this section shall be in addition to any notice requirements under federal law.
(1) distribute, by any means including by electronic mail, the notice or information, as soon as practicable, but no later than three business days after receipt, to every tenant who has entered into a lease agreement with the landlord and whose dwelling unit is served by the public water system; and
(2) post the notice or information, as soon as practicable, but no later than three business days after receipt, in a prominent location at the entrance of each rental premises that is owned by the landlord and served by the public water system, except that this requirement shall not apply in the case of single-family dwellings that do not have a common area.
b. The requirements of subsection a. of this section shall not apply to a landlord when a tenant is a direct customer of the public water system and is billed directly by the public water system.
c. When a public water system provides any notice or information to its customers concerning the presence of lead in drinking water, the public water system shall include a statement, printed in easily legible type, explaining the requirements set forth in subsection a. of this section.
"Copper action level" means the standard for copper in drinking water established by the United States Environmental Protection Agency, or a more stringent standard adopted by the department pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.).
"Customer" means a residential or commercial customer of record and, if known to the public water system, any residential tenant of a multifamily residence having two or more units where the landlord of that residence is a non-residential customer of record. "Customer" shall include all schools, daycare centers, and facilities serving young children, all public and private hospitals, medical clinics, and doctor's offices serving pregnant women and young children, all local health and welfare agencies in the public water system's service area, and the offices of the chief executive officer of each municipality in the public water system's service area.
"Department" means the Department of Environmental Protection.
"Landlord" means the same as that term is defined in section 2 of P.L.1975, c.310 (C.46:8-44).
"Lead action level" means the standard for lead in drinking water established by the United States Environmental Protection Agency, or a more stringent standard adopted by the department pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.).
"Lead service line" means a water supply connection that is made of, or lined with a material consisting of, lead and connects a water main to a building inlet. A lead pigtail, lead gooseneck, or other lead fitting shall be considered a lead service line, regardless of the service line material. A galvanized service line or a service line of unknown material shall be considered a lead service line. A lead service line may be owned by a public water system, a property owner, or both.
"Partial service line replacement" means the replacement of some, but not all, of the lead service line, including any portion of the pipe connecting a water main to an individual water meter or service connection.
(2) The results of every test authorized pursuant to this subsection shall be provided to the customer.
(3) When a landlord receives the results of test provided pursuant to paragraph (2) of this subsection, the landlord shall:
(a) distribute, by any means including by electronic mail, the notice of the results as soon as practicable, but no later than three business days after receipt, to every tenant who has entered into a lease agreement with the landlord and whose dwelling unit is served by the public water system; and
(b) post the notice of the results, as soon as practicable, but no later than three business days after receipt, in a prominent location at the entrance of each rental premises that is owned by the landlord and served by the public water system, except that this requirement shall not apply in the case of single-family dwellings that do not have a common area.The requirements of this paragraph shall not apply to a landlord when a tenant is a direct customer of the public water system and is billed directly by the public water system.
b. A customer who requests a test pursuant to this section shall not be charged a fee by the public water system for the test. A public water system that is a "public utility," as defined in R.S.48:2-13, and that is regulated by the Board of Public Utilities pursuant to Title 48 of the Revised Statutes, may petition the board to include in the public water system's rate base the reasonable costs of testing it provides to customers pursuant to this section.
c. A public water system that exceeds the lead action level or the copper action level shall include a notification on each customer's water bill, which clearly states the availability of water testing pursuant to this section. If a landlord receives a notification under this subsection, the landlord shall distribute and post the notification and any relevant information to every tenant who has entered into a lease agreement with the landlord and whose dwelling unit is served by the public water system in the same manner as provided in paragraph (2) of subsection a. of this section.
b. A customer who requests a test pursuant to this section shall not be charged a fee by the public water system for this test. A public water system that is a "public utility," as defined in R.S.48:2-13, and that is regulated by the Board of Public Utilities pursuant to Title 48 of the Revised Statutes, may petition the board to include in the public water system's rate base the reasonable costs of testing it provides to customers pursuant to this section.
c. A public water system that carries out a partial service line replacement of a lead service line serving a customer shall include a notification on the customer's water bill, which clearly states the availability of water testing pursuant to subsection a. of this section.
d. If a test carried out on a property pursuant to this section reveals that the water exceeds the lead action level, the public water system shall provide a written notice by mail of this fact to the chief executive of the municipality in which the property is located and all local health agencies in the municipality in which the property is located.
(2) The public water system shall provide the results of every test authorized pursuant to this subsection to the customer or non-paying consumer.
b. A public water system shall not be required to comply with the requirements of subsection a. of this section for a property that is:
(1) constructed after 1986;
(2) located in a property that is serviced by a service line that has been determined by the public water system, pursuant to P.L.2021, c.183 (C.58:12A-40 et seq.), not to be a lead service line; or
(3) a seasonal rental unit.
c. A customer or non-paying consumer who requests a test pursuant to this section shall not be charged a fee by the public water system for the test. A public water system that is a "public utility," as defined in R.S.48:2-13, and that is regulated by the Board of Public Utilities pursuant to Title 48 of the Revised Statutes, may petition the board to include in the public water system’s rate base the reasonable costs of testing it provides to customers or non-paying consumers pursuant to this section. A public water system that is not regulated by the Board of Public Utilities may include in the public water system’s rates the reasonable costs of testing it provides to customers or non-paying consumers pursuant to this section.
b. A public water system, found to be in violation of section 4 of P.L.2025, c.144 (C.58:12A-12.9a) shall be provided with a written notice of the violation by the Commissioner of Environmental Protection and given 15 days to cure the violation. If the public water system has not cured the violation after 15 days, the Commissioner of Environmental Protection may impose a penalty of $100 for a first violation, $500 for a second violation, and $1,000 for a third and subsequent violation. The penalties applicable under this subsection shall be enforced by the Commissioner of Environmental Protection pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) in the Superior Court. If a customer is affected by a public water system that has violated section 4 of P.L.2025, c.144 (C.58:12A-12.9a), the customer may file a complaint with the Department of Environmental Protection.
"Disruption of the public community water system" means any disruption that has the potential to lessen the quality of the water delivered, including increasing the risk of exposure to pathogens such as Legionella bacteria. "Disruption of the public community water system" shall include, but not be limited to: (1) a change in the water treatment process; (2) an unplanned event that results in catastrophic issues that disrupt typical water system operations; (3) a change in source of the drinking water; and (4) any other conditions that the Department of Environmental Protection finds may lead to a potential risk in the quality of water.
"Public community water system" means the same as the term is defined in section 2 of P.L.2021, c.183 (C.58:12A-41).
(1) for systems utilizing chlorine as a disinfectant, a minimum detectable disinfectant residual of at least 0.3 milligrams per liter of free chlorine in all active parts of the public community water system at all times; and
(2) for systems utilizing chloramine as a disinfectant, a minimum detectable disinfectant residual of at least 1.0 milligrams per liter of monochloramine in all active parts of the public community water system at all times.
b. The Department of Environmental Protection shall, within 12 months after the effective date of P.L.2024, c.66 (C.58:12A-12.10 et al.), develop and publish on its Internet website best management practices for public community water systems to discourage the growth and potential distribution of pathogens such as Legionella bacteria. The best management practices shall include, but not be limited to, information regarding:
(1) identification of areas of aging infrastructure, dead ends, or components prone to biofilm accumulation;
(2) types of disruptions in the water distribution system;
(3) flushing details and schedule;
(4) disinfectant residual maintenance;
(5) storage tank maintenance;
(6) identification of areas of low water use, stagnation, or low pressure;
(7) monitoring and testing;
(8) water age management; and
(9) other measures the Department of Environmental Protection deems necessary for the optimization of water systems.
c. No later than six months after the promulgation of rules regulations by the Department of Environmental Protection pursuant to section 4 of P.L.2024, c.66 (C.58:12A-12.13), each public community water system that is subject to the provisions of subsection a. of this section shall develop and implement a distribution system maintenance plan to comply with the provisions of 1 through 4 of P.L.2024, c.66 (C.58:12A-12.10 through 58:12A-12.13), in accordance with the best management practices developed pursuant to subsection b. of this section and any applicable rules and regulations adopted by the department. The public community water system shall annually submit to the department a statement certifying that the public community water system has developed and implemented a distribution system maintenance plan pursuant to the provisions of this section.
b. No later than 24 months after the effective date of P.L.2024, c.66 (C.58:12A-12.10 et al.), the Department of Environmental Protection shall establish a data management system for the receipt of records by a public community water system of any disruption, and, on its Internet website, a dashboard of publicly accessible and searchable records of disruptions of the public community water system received by the Department of Environmental Protection pursuant to subsection a. of this section.
c. The requirements of subsection a. of this section shall not become operative until the Department of Environmental Protection has developed a data management system for the submission of records of disruptions of the public community water system.
b. The rules and regulations adopted pursuant to this section shall establish requirements for public community water systems with more than 100 service connections to discourage and minimize growth and potential distribution of pathogens such as Legionella bacteria in the water system, and shall include, but not be limited to:
(1) criteria to be used by public community water systems to develop distribution system maintenance plans, including, but not limited to, frequency of required disinfectant residual monitoring;
(2) requirements for a public community water system to certify its distribution system maintenance plan and provide the plan to the department upon request;
(3) the criteria for what would constitute a failure to comply with a distribution system maintenance plan;
(4) criteria for identifying disruptions of the public community water system; and
(5) requirements for customer notifications during times of increased risk of Legionella bacteria exposure, in accordance with similar notification requirements in P.L.1977, c.224 (C.58:12A-1 et seq.), including, but not limited to, a requirement to provide information about the risks of Legionella bacteria and measures consumers can take to reduce or eliminate exposure to Legionella bacteria; and
(6) penalties, in accordance with the provisions of section 10 of P.L.1977, c.224 (C.58:12A-10), for failure to maintain the minimum detectable disinfectant residual required pursuant to subsection a. of section 2 of P.L.2024, c.66 (C.58:12A-12.11), failure to comply with a certified distribution system maintenance plan, failure to comply with notification requirements, or any other violations of the provisions of P.L.2024, c.66 (C.58:12A-12.10 et al.).
a. The commissioner, after considering the recommendations of the Drinking Water Quality Institute created pursuant to section 10 of this amendatory and supplementary act, shall, within 18 months of the effective date of this amendatory and supplementary act and pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), adopt rules and regulations which establish a maximum contaminant level for each of the following organic compounds:
Trichlorethylene Tetrachloroethylene Carbon tetrachloride 1,1,1-Trichloroethane 1,2-Dichloroethane Vinyl chloride Methylene chloride Benzene Chlorobenzene Dichlorobenzene (s) Trichlorobenzene (s) 1,1--Dichloroethylene Cis--1,2-dichloroethylene Trans--1,2-dichloroethylene Polychlorinated biphenyls (PCBs) Xylenes Ethylene glycol Chlordane Kerosene Formaldehyde n-Hexane Methyl ethyl ketone
b. The commissioner, after considering the recommendations of the Drinking Water Quality Institute, shall, within two years of the effective date of this amendatory and supplementary act and pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), adopt rules and regulations which develop, within the limits of medical, scientific, and technological feasibility, a list of those pesticides and related compounds, metals, and base/neutral extractable organic compounds and acid extractable organic compounds which he believes may be found in drinking water and the presence of which above maximum contaminant levels in drinking water, upon ingestion or assimilation, may, on the basis of the best information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunction (including malfunctions in reproduction), or physical deformity; and establish, within the limits of medical scientific and technological feasibility, maximum contaminant levels for each chemical or chemical compound on the list which, with respect to carcinogens, permit cancer in no more than one in one million persons ingesting that chemical for a lifetime, and, with respect to other chemicals or chemical compounds on the list and those carcinogens resulting from compounds with public health benefits, eliminate within the limits of practicability and feasibility all adverse physiological effects which may result from ingestion; provided, however, that in no case shall the standard adopted by the commissioner for any chemical or chemical compound on the list be less stringent than that established for the same chemical or chemical compound by the United States Environmental Protection Agency, pursuant to the "Safe Drinking Water Act," Pub.L. 93-523 (42 U.S.C. s. 300f et seq.), or any other federal agency.
No maximum contaminant level need be established for any substance identified pursuant to subsection a. or b. of this section until the presence of the substance in drinking water is established by any test required by this act.
The water purveyor whose water was submitted for a potability test required by this amendatory and supplementary act shall forward to the department a copy of all test results. The certified laboratory conducting the potability test may, upon written approval by the department, submit the test results on behalf of the water purveyor. The department is authorized to conduct spot checks to assure compliance with this amendatory and supplementary act and the accuracy and integrity of the reported results.
a. The owner or operator of each public community water system which has been determined to contain a chemical or chemical compound identified pursuant to section 2 of this amendatory and supplementary act at a level exceeding the maximum contaminant level shall, within a year after receipt of the test results, take any action required to bring the water into compliance with the standard; provided, however, that the commissioner may require compliance as promptly as necessary to abate an immediate public health threat, or extend the period of compliance if new construction is required therefor; provided further, however, that the extension shall be granted only upon a determination by the commissioner, after a public hearing, that the extension will not pose an imminent threat to public health.
b. In the event that the owner or operator of a public water system fails to bring the water supplied to consumers into compliance pursuant to subsection a. of this section, the commissioner may enjoin the water purveyor from continuing to supply water to the public, and establish, in conjunction with the local board of health or county health department, or other appropriate agency, a program to bring the water supply into compliance or provide an alternate potable water supply for the customers of the system.
Local health departments, in cooperation with the department, shall develop voluntary procedures for the testing of water for homeowners whose principal source of potable water is a well, to be paid by the homeowner, or who are served by a nonpublic water system or a public water system which is not a public community water system, to be paid for by the owner or operator thereof.
Within 90 days of the effective date of this amendatory and supplementary act, the Board of Public Utilities shall issue appropriate orders increasing current tariffs established pursuant to law for the supplying of water service by an amount equal to the total increase in the relevant water supply service costs resulting from the testing of water required by the provisions of this amendatory and supplementary act and the tax levied pursuant to section 11 of this amendatory and supplementary act. In issuing this order, the board shall not be bound to find a rate base under the provisions of section 31 of P.L.1962, c. 198 (C. 48:2-21.2).
When the department orders a municipality, county, or agency thereof which operates a public water supply system to install treatment techniques or other apparatus or equipment for the purpose of achieving a maximum contaminant level established by the department, the Division of Local Government Services in the Department of Community Affairs shall, when reviewing the annual budget of the municipality, county, or agency thereof, certify that an amount sufficient to cover the cost of the treatment technique specified in the order issued to the municipality, county, or agency thereof is included in the annual budget.
The commissioner shall make an annual report to the Legislature and the Governor and to the Chairmen of the Senate Energy and Environment Committee and General Assembly Agriculture and Environment Committee, or their successors, which shall summarize and analyze the results and effects of the testing program mandated by this amendatory and supplementary act, and make any recommendations concerning the "Safe Drinking Water Act" deemed appropriate. This report shall be due on October 1, 1984 and annually thereafter.
a. There is established in the department the Drinking Water Quality Institute. The institute shall comprise 15 members as follows: the Commissioner of Environmental Protection, the Commissioner of Health, and the Chairman of the Water Supply Advisory Council, the Director of the Division of Water Resources in the department, the Director of the Office of Science and Research in the department and the Director of the Office of Occupational and Environmental Health in the Department of Health, all of whom shall serve ex officio; and nine appointed members, three of whom shall represent the water purveyors, at least one of which has as its primary water source an underground source; three of whom shall represent the academic scientific community and three of whom, having backgrounds in environmental health issues, shall represent the public, with one of each group of three set forth hereinbefore to be appointed by the Governor, the President of the Senate and the Speaker of the General Assembly. Of the members first appointed, three shall serve for terms of three years, three for terms of two years and three for terms of one year. Thereafter, all terms shall be for three years. Each member shall serve for the term of his appointment and until his successor shall have been appointed and qualified. Any vacancy shall be filled in the same manner as the original appointment for the unexpired term only. Any member of the institute may be removed by the appointing authority, for cause, after public hearing.
b. Members of the institute shall serve without compensation, but the institute may, within the limits of funds appropriated or otherwise made available to it for such purposes, reimburse its members for necessary expenses incurred in the discharge of their official duties.
c. The institute shall meet at such times and places as may be determined by its chairman, who shall be designated by the Governor. A majority of the membership of the institute shall constitute a quorum for the transaction of business. Action may be taken and motions and resolutions adopted by the institute at any meeting by the affirmative vote of a majority of the full membership of the institute.
d. The institute shall make recommendations for the implementation of the Drinking Water Quality Program by the department. These recommendations shall consist of:
(1) The development of a list of contaminants for which testing shall be required;
(2) The development of maximum contaminant levels;
(3) The development of appropriate testing techniques to measure maximum contaminant levels;
(4) The development of testing frequencies;
(5) The review of all activities undertaken pursuant to the "Safe Drinking Water Act" and any amendments or supplements thereto.
e. The Drinking Water Quality Institute shall have the authority to call to its assistance and avail itself of the services of the employees of any State, county or municipal department, board, commission or agency that may be required and made available for such purposes.
a. There is levied upon the owner or operator of every public community water system a water tax of $0.01 per 1,000 gallons of water delivered to a consumer, not including water purchased for resale, on or after first day of the first full fiscal quarter following enactment of P.L. 1983, c. 443 (C. 58:12A-12 et al.), and quarterly thereafter.
b. (1) The owner or operator of every public community water system shall, on or before the 20th day of the month following the close of each tax period, render a return under oath to the Director of the Division of Taxation, on such form as may be prescribed by the director, indicating the number of gallons of water delivered to a consumer, and at said time owner or operator shall pay the full amount of tax due.
(2) The owner or operator of every public community water system shall, within 20 days, register with the director on forms prescribed by him.
c. If a return required by this act is not filed, or if a return when filed is incorrect or insufficient in the opinion of the director, the amount of tax due shall be determined by the director from such information as may be available. Notice of such determination shall be given to the taxpayer liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax, unless the person against whom it is assessed, within 30 days after receiving notice of such determination, shall apply to the director for a hearing, or unless the director on his own motion shall redetermine the same. After such hearing the director shall give notice of his determination to the person to whom the tax is assessed.
d. Any taxpayer who shall fail to file his return when due or to pay any tax when the same becomes due, as herein provided, shall be subject to such penalties and interest as provided in the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq. If the Division of Taxation determines that the failure to comply with any provision of this section was excusable under the circumstances, it may remit such part or all of the penalty as shall be appropriate under such circumstances.
e. (1) (Deleted by amendment, P.L. 1987, c. 76)
(2) (Deleted by amendment, P.L. 1987, c. 76)
f. In addition to the other powers granted to the director in this section, he is authorized:
(1) To delegate to any officer or employee of his division such of his powers and duties as he may deem necessary to carry out efficiently the provisions of this section, and the person to whom such power has been delegated shall possess and may exercise all of said powers and perform all of the duties delegated by the director;
(2) To prescribe and distribute all necessary forms for the implementation of this section.
g. The tax imposed by this section shall be governed in all respects by the provisions of the State Tax Uniform Procedure Law, R.S. 54:48-1 et seq., except only to the extent that a specific provision of this section may be in conflict therewith.
h. The "Safe Drinking Water Fund" (hereinafter referred to as the "fund") is established as a nonlapsing, revolving fund. The fund shall be administered by the department, and shall be credited with all tax revenue collected by the division pursuant to this section. Interest received on moneys in the fund shall be credited to the fund. Moneys in the fund shall be appropriated to the department for all costs associated with the department's administration of all aspects of the programs set forth in the "Safe Drinking Water Act," P.L. 1977, c. 224 (C. 58:12A-1 et seq.), in the annual budget request of the department.
b. Loans made to local government units pursuant to this act shall bear interest at a rate fixed by the State Treasurer, which rate shall not exceed two percent per year for a term of not more than 20 years.
c. As used in this act, "hazardous substance" means any substance defined as a hazardous substance by the Department of Environmental Protection pursuant to rules and regulations adopted pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b).
a. There is established in the "Water Supply Replacement Trust Fund" established pursuant to section 1 of P.L.1988, c.106 (C.58:12A-22) a Radium-Contaminated Water Supply sub-account. Monies in the Radium-Contaminated Water Supply sub-account shall be used by the Department of Environmental Protection for the purpose of testing and mapping those aquifers identified by the department to determine the extent of radium contamination of the aquifer, and by the department or a municipal or regional health agency certified by the department pursuant to section 15 of P.L.1977, c.443 (C.26:3A2-33) for the purpose of financing confirmatory tests to determine the presence of radium in potable water supplies.
b. Any owner of a single family residence who has conducted a gross alpha or a gross beta screen test of the potable water supply relied upon by the occupants of the single family residence, the results of which indicate the presence of radium in the potable water supply in excess of a safety level established by the department, may petition the department to conduct a confirmatory test, which may be based on representative sampling, to determine the accuracy of the initial test. Upon receipt of such a request, the department shall conduct the confirmatory test. No request for a confirmatory test may be made by a person pursuant to this subsection until the department has completed the testing and mapping of aquifers required pursuant to subsection a. of this section.
c. Of the amount appropriated to the Radium-Contaminated Water Supply sub-account, the sum of $1,000,000 is allocated to the New Jersey Housing and Mortgage Finance Agency established pursuant to P.L.1983, c.530 (C.55:14K-1 et seq.) and dedicated for the purposes of providing low interest loans to owners of single family residences whose source of potable water is contaminated or threatened by contamination with radium to provide a permanent alternative potable water supply or adequate treatment technology.
The agency shall establish a program to provide the loans authorized pursuant to this subsection. The loans issued pursuant to this subsection shall bear an interest of not more than 2 percent per year, and shall be for a term of not more than five years. The maximum amount for any single loan shall be $10,000. Loan applicants shall provide certification from the Department of Environmental Protection or from a municipal or regional health agency certified pursuant to section 15 of P.L.1977, c.443 (C.26:3A2-33) of the contamination or the threat of this contamination when applying for loans on forms prescribed by the agency.
d. There is appropriated to the Radium-Contaminated Water Supply sub-account the sum of $3,500,000 from the "Clean Waters Fund" established pursuant to P.L.1976, c.92 from amounts in the fund received as repayments of emergency water supply loans made pursuant to P.L.1981, c.28.
b. Of the monies appropriated to the Water Supply Remediation sub-account pursuant to section 6 of P.L.1991, c.456, $500,000 shall be used by the Department of Environmental Protection for the evaluation of water treatment systems, and the Department of Community Affairs to administer the loan program established pursuant to section 3 of P.L.1991, c.456 (C.58:12A-22.3).
c. Any owner of a single family residence who has conducted a test of the potable water supply used by the occupants of the single family residence, the results of which indicate a violation of a primary drinking water standard or a violation of a standard for sodium, chloride, lead, mercury, iron, or manganese, established by the department pursuant to section 4 of P.L.1991, c.456 (C.58:12A-22.4) , may apply for a loan pursuant to section 3 of P.L.1991, c.456 (C.58:12A-22.3).
b. The New Jersey Housing and Mortgage Finance Agency shall establish, within 120 days of the date of enactment of P.L.1999, c.266, a program to provide the loans authorized pursuant to this section, which shall include, but need not be limited to, funding priorities based on the priority system developed by the Department of Environmental Protection pursuant to section 4 of P.L.1991, c.456 (C.58:12A-22.4). The loans issued pursuant to this section shall bear zero interest and shall be for a term of not more than 10 years. The maximum amount for any single loan shall be $10,000. Loan applicants shall provide certification from the Department of Environmental Protection or from a municipal or regional health agency certified pursuant to section 15 of P.L.1977, c.443 (C.26:3A2-33) of the contamination or the threat of contamination when applying for loans on forms prescribed by the agency. Any loan issued pursuant to this section shall be secured and the New Jersey Housing and Mortgage Finance Agency may assess a loan servicing fee on each loan not to exceed one percent per year on the balance of the loan.
Notwithstanding any provision of P.L.1991, c.456 (C.58:12A-22.2 et al.) to the contrary, the New Jersey Housing and Mortgage Finance Agency may issue up to $1,000,000 in loans pursuant to this section prior to the Department of Environmental Protection developing the priority system required pursuant to section 4 of P.L.1991, c.456 (C.58:12A-22.4).
a. Of the monies made available for the cleanup of hazardous discharge sites pursuant to P.L.1986, c.144 (C.54:10A-5.1 et seq.) and transferred to the "Water Supply Replacement Trust Fund" pursuant to section 3 of this act, the sum of $1,000,000 is allocated for the purpose of funding a study to be conducted by the department to determine the extent to which water supplies are contaminated or are threatened by contamination with hazardous substances and to develop recommendations for dealing with such contaminated or threatened water supplies, and $2,000,000.00 is allocated for conducting site specific feasibility studies authorized pursuant to section 1 of this act.
b. Of the monies made available for the cleanup of hazardous discharge sites pursuant to P.L.1986, c.144 (C.54:10A-5.1 et seq.) and transferred to the "Water Supply Replacement Trust Fund" pursuant to section 3 of this act, the sum of $57,000,000 is allocated for the purpose of providing loans to municipalities or municipally-owned or privately-owned public water systems as defined in section 3 of P.L.1977, c.224 (C.58:12A-3) for the purpose of providing a permanent alternate water supply to persons whose principal source of potable water is contaminated or is threatened with contamination by hazardous substances as identified by the department.
a. Of the $40,000,000.00 appropriated pursuant to P.L. 1987, c. 154 to the Department of Environmental Protection for hazardous site mitigation Statewide, the sum of $30,000,000.00 is transferred to the "Water Supply Replacement Trust Fund" to carry out the purposes of this act. Of this amount, the Department is authorized to utilize not more than 5% of the total appropriated per year to cover costs incurred in the administration of sections 2a. and 2b. of this act.
b. Of the $45,000,000.00 appropriated pursuant to P.L. 1988, c. 47 to the Department of Environmental Protection for hazardous site mitigation Statewide, $30,000,000.00 is transferred to the "Water Supply Replacement Trust Fund" to carry out the purposes of this act. Of this amount, the Department is authorized to utilize not more than 5% of the total appropriated per year to cover costs incurred in the administration of sections 2a. and 2b. of this act.
"Board" means the Board of Public Utilities.
"Commissioner" means the Commissioner of Environmental Protection.
"Department" means the Department of Environmental Protection.
"Non-investor-owned public community water system" means a public community water system or the owner of a public community water system, as that term is defined by section 3 of P.L.1977, c.224 (C.58:12A-3), that is not investor-owned.
"Public water system" means the same as the term is defined in section 3 of P.L.1977, c.224 (C.58:12A-3).
"System owner or operator" means a board, authority, local government unit, or other person or entity that owns or operates a public water system in the State.
The study shall be completed no later than three years after the effective date of this act and shall include the development of a definition of microplastics in drinking water and an evaluation of:
(1) the short-term and long-term impacts of microplastics on human health and the environment, including, but not limited to, ocean and riparian ecosystems, aquatic and marine organisms, drinking water quality, and the food chain;
(2) the origin and migration of microplastics in the State's waters and methods for avoiding the accumulation of microplastics in drinking water and other water resources;
(3) the beneficial impacts to human health and the environment that are likely to result from the increased use of microplastics removal technologies in the State;
(4) the different types of microplastics removal technologies that are available, on the market, for use in removing microplastics from drinking water, and the costs thereof;
(5) the performance capacity of each type of microplastics removal technology available on the market, including, but not limited to, the capacity of each microplastics removal technology to adequately remove microplastics from drinking water, and the efficiency and efficacy of each such technology;
(6) whether, and the extent to which, each available microplastics removal technology is currently being used in New Jersey, other states, or in other countries;
(7) appropriate methods for disposal of microplastics that have been removed from drinking water;
(8) the feasibility and desirability of establishing a grant or financing program or financial incentive system, or of using other available means and methods, such as public-private partnerships, financial investments, or university involvement, to encourage and incentivize the development and successful deployment of new and effective microplastics removal technologies in the State, with particular attention to the financial needs of non-investor-owned public community water systems; and
(9) the factors that should be considered, and determinations that should be made, by the department when evaluating proposals for microplastics removal projects in the State.
b. The department may, if appropriate, authorize system owners or operators in the State to engage in pilot microplastics removal projects, with associated pilot project data to be included in the study conducted pursuant to subsection a. of this section and in the report produced pursuant to subsection d. of this section. The department may solicit and approve applications for, and take other appropriate action to facilitate, the implementation of pilot projects for these purposes.
c. In conducting the study pursuant to subsection a. of this section, the department and board shall cooperatively engage in a robust stakeholder engagement process, which shall include consultation with, and the solicitation of testimony and information from:
(1) professionals, businesses, organizations, and agencies having particular experience or expertise in one or more of the following areas: the operation of water supply or water treatment; the operation of water filtering systems or removal technologies; the proper handling or disposal of microplastics; or the study or remediation of water pollution or contaminants;
(2) water quality specialists, environmental scientists, toxicologists, public health experts, and other members of appropriate scientific fields;
(3) representatives of the plastics manufacturing industry;
(4) members of the public; and
(5) other relevant and interested parties.
d. No later than three months after the study, pursuant to subsection a. of this section, is concluded, the commissioner shall prepare and submit a written report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, identifying the findings from the study, including any findings and relevant data associated with pilot projects undertaken pursuant to subsection b. of this section, and providing recommendations for legislative, executive, and other actions that should be taken to facilitate, encourage, promote, support, or require the removal of microplastics from drinking water in the State.
e. Following the submission of the report, pursuant to subsection d. of this section, the department shall:
(1) consistent with the findings set forth in the report, and in coordination with the Department of Health, engage in a public education and awareness campaign, and take other appropriate action, in order to inform system owners or operators and members of the public about:
(a) the threats to human health and the environment that are posed by microplastics;
(b) the importance of removing microplastics from drinking water;
(c) the microplastics removal technologies that are available on the market and have been deemed to be effective in removing microplastics from water and;
(d) the State and federal incentives or other financial assistance that are available, if any, to facilitate the development, deployment, and use of new or existing microplastics removal technologies in the State;
(2) establish a process to review and act upon applications for such permits or licenses as may be necessary for the continuation of any pilot projects commenced pursuant to subsection b. of this section and the commencement of new microplastics removal projects by system owners or operators in the State;
(3) if the study finds that consumption of microplastics via drinking water poses a health risk, work with the Drinking Water Quality Institute to conduct the further evaluations of human health effects, testing capabilities, and treatment capacity for microplastics in drinking water necessary to inform future regulatory development by the department; and
(4) consistent with the recommendations contained in the report, and within the limits of funds appropriated to the department, establish grant, financing, incentive, or other programs as necessary to support, incentivize, promote, or facilitate the increased use of effective and efficient new and existing microplastics removal technologies by system owners or operators in the State, with a primary focus on the financial needs of non-investor-owned public community water systems.
f. Recovery in rates by any system owner or operator subject to the rate-setting jurisdiction of the board of any costs associated with studying, piloting, or implementing technologies, processes, or techniques required to meet the goals of the legislation shall be subject to approval by the board.
The Department of Environmental Protection shall utilize $8,000,000.00 of the monies deposited in the "Water Supply Replacement Trust Fund" to provide loans to a qualifying municipality for the extension of a public water supply system to a residential area or to a municipally-owned or privately-owned public water supply system for the extension of a public water supply system to a residential area in a qualifying municipality. A qualifying municipality is one with a residential area of more than 1,500 residential units that has been found by the local department of health, or board of health, and the county board of health, or department of health, to have at least 25% of the wells supplying potable water to the area with contaminants at the Class II, Class III or Class IV interim action levels for hazardous contaminants in drinking water of the Department of Environmental Protection, or in excess of the maximum contaminant levels adopted by the department pursuant to P.L.1983, c.443 (C.58:12A-12 et seq.), as may be applicable, and:
a. (1) The potable water supply for the residential area is deemed by the county board of health or department of health to be unfit for human consumption, and (2) the governing body of the municipality has adopted a resolution banning new construction in the area pending connection of the area to a public water supply system; or
b. The Department of Environmental Protection determines all or a portion of the ground water serving the residential area to be a well-restriction area.
A municipality applying for a loan under this section shall certify to the department the estimated costs for extending a public water supply system to an eligible residential area that satisfies the criteria of this section. Monies from a loan made hereunder are to be expended solely for the purpose of expanding the public water supply system to residences with contaminated wells.
b. Closing of title on the sale of the real property shall not occur unless both the buyer and the seller have received and reviewed a copy of the water test results. At closing, the buyer and seller both shall certify in writing that they have received and reviewed the water test results.
In addition, the water test shall include a short term 48-hour gross alpha test to screen for the presence of radium, provided that the Department of Environmental Protection has made a finding pursuant to subsection b. of section 4 of this act that there are a sufficient number of laboratories certified to perform the test.
b. (1) The Department of Environmental Protection shall conduct an annual review to determine if there are a sufficient number of laboratories certified to perform the short term 48-hour gross alpha test to screen for the presence of radium that are able to provide results at a reasonable cost within 10 days of a request for testing. This review shall be based upon the projected number of transactions for which the test is required. The department shall publish its findings in the New Jersey Register.
For the purposes of section 3 of this act, if the department finds that there are a sufficient number of laboratories to conduct the short term 48-hour gross alpha test to screen for the presence of radium only within a limited area in the State, as determined by the department, and which laboratories are able to provide results at a reasonable cost within 10 days of a request for testing, then the test shall be required only within that limited area until such time as the department finds that there are a sufficient number of laboratories to provide service elsewhere in the State.
(2) The department shall establish, by rule or regulation adopted pursuant to the "Administrative Procedure Act," a protocol for proper conducting of the short term 48-hour gross alpha test to screen for the presence of radium.
c. The Department of Environmental Protection, in consultation with the Drinking Water Quality Institute and by rule or regulation adopted pursuant to the "Administrative Procedure Act," may exclude or limit by geographic area or geologic formation, or based upon well record information, any parameter listed in section 3 of this act that the department deems is not significant in a county or in any specific area within a county and which need not be tested for as part of any water test to be conducted in accordance with this act.
d. For each parameter to be tested for in accordance with this act, the Department of Environmental Protection shall establish, by rule or regulation adopted pursuant to the "Administrative Procedure Act," a maximum time period for which a test result shall remain valid for the purposes of section 2 of this act without necessitating retesting for that parameter. A retest of the water supply shall not be required pursuant to section 2 of this act if the contract of sale is entered into within the period of test validity established pursuant to this subsection. Notwithstanding any provision of this subsection to the contrary, a buyer and seller subject to the provisions of section 2 of this act may mutually agree to retest for a parameter even though the maximum time period for test validity for that parameter established pursuant to this subsection has not expired.
b. Any water test results provided by a laboratory to the person or persons requesting the test shall include the maximum contaminant levels or other established water quality standards, if any, prescribed by the Department of Environmental Protection for each parameter tested and shall be transmitted on a standardized private well water test reporting form prescribed by the department. The form shall provide information regarding remediation funding alternatives available, and shall refer the buyer and seller of the real property in question to the appropriate office or person within the Department of Environmental Protection, or to the department's website, for further information regarding such alternatives.
c. The laboratory, within five business days after completion of the water test, shall also submit the water test results to the Department of Environmental Protection together with the following information:
(1) A statement that the testing is for the purpose of complying with the "Private Well Testing Act," P.L.2001, c.40 (C.58:12A-26 et seq.);
(2) The location of the real property, described by block and lot number, street address, municipality, and county;
(3) The name and mailing address of the person or persons making the request for the test;
(4) The name of the employee or authorized representative of the laboratory who collected the well sample;
(5) The date and time that the water sample was collected and the specific point of collection;
(6) The date and time the sample was analyzed by the laboratory; and
(7) Such other information as may be required by the Department of Environmental Protection, in consultation, if deemed necessary or appropriate by the department, with each county health department, health agency, or designated health officer, as appropriate to each county.
d. The Department of Environmental Protection may require laboratories to submit electronically the information required pursuant to subsection c. of this section.
e. A laboratory shall not release water test results to any person except the buyer and seller of the real property at issue as provided pursuant to section 2 of this act, the lessor of the real property as provided pursuant to section 7 of this act, any person authorized by the buyer, seller, or lessor, as the case may be, the Department of Environmental Protection, or any person designated by court order.
f. The Department of Environmental Protection shall compile the data accumulated from the water test results submitted by laboratories pursuant to this section in a manner that shall be useful to the department, counties, municipalities, or other governmental entities for the purposes of studying groundwater supplies or contamination in the State.
b. Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) or any other law to the contrary, water test results received by the Department of Environmental Protection, a county health department, health agency, or designated health officer, or any other State or local governmental entity in compliance with or as authorized by this act shall be confidential and shall not be open for public examination, inspection, or copying, except that general compilations of water test results data arranged or identified by county and municipality or appropriate geographic areas therein, which do not include specific address or location information, may be made available to the public.
The department shall make available to the public a general compilation of water test results data arranged or identified by county and municipality or appropriate geographic areas therein, but which does not include specific address or location information.
b. For each State fiscal year after the State fiscal year in which this act is enacted, the Commissioner of Environmental Protection shall include in the annual budget request of the Department of Environmental Protection submitted for the annual appropriations act a sufficient sum to meet the costs, as set forth in subsection a. of this section and in section 11 of this act, for the particular State fiscal year.
a. Lead service lines are the primary source of lead in drinking water;
b. It is estimated that there are between 160,000 and 350,000 lead service lines throughout the State;
c. Lead in drinking water poses a serious health and safety risk to the public, particularly infants and children;
d. A municipality in the State, pursuant to R.S.40:48-2, may enact such ordinances as it deems necessary and proper for the preservation of the public health, safety, and welfare of the municipality and its inhabitants; and
e. It is the intent of the Legislature to clarify that a municipality may enact an ordinance to enter properties to perform lead service line replacements as part of its powers to protect the health, safety, and welfare of its residents.
b. For the purposes of this section, notice to the owner and any residents of the property shall include an attempt to inform the owner and any residents in person of the date and time of the lead service line replacement, and if the owner or a resident is unable to be reached in person, the municipality shall send, by certified mail, a letter to the owner and any residents or post a written notice in a prominent location on the property which shall include:
(1) the scheduled date and time of the lead service line replacement and who will be performing the replacement;
(2) the likely extent of water service disruption;
(3) nearby locations where the municipality or a public water system is distributing supplementary drinking water, if any ; and
(4) any remedies that the municipality shall take if the municipality or municipal water system, or an agent thereof, is unable to access the property.
In a municipality in which the primary language of 10 percent or more of the residents is a language other than English, a letter or written notice sent or posted pursuant to this subsection shall be provided in English and any other such primary language.
c. In addition to the notice requirements of subsection b. of this section, a municipality shall send, by certified mail, the owner a letter after the completion of the replacement stating the approximate time that the replacement occurred, and providing a brief summary of the work performed.
d. As used in this section:
"Municipal water system" means a municipal utilities authority, water district, waterworks, water commission, joint meeting or any other political subdivision of the State authorized pursuant to law to operate or maintain a public water system or to construct, rehabilitate, operate, or maintain water supply facilities or otherwise provide water for human consumption.
"Service line" means the pipe, tubing, and fittings connecting a municipal water main to a building or structure, and also includes the water meter for the property.
The Legislature therefore declares that public water systems should fully inventory all service lines and gradually replace all lead service lines, portions of which may exist on private property; and that, given the risk to public health and the resulting social costs that lead exposure imposes upon society as a whole, it is in the public interest that each public water system be obligated to replace lead service lines, including those that exist on private property, and be authorized to recoup the costs of lead service line replacements from all subscribers of the public water system.
"Board" means the Board of Public Utilities or any successor agency.
"Customer" means a property owner or lessee who receives, and is required to pay, a water utility bill for water being supplied to the property.
"Distributed System Improvement Charge" means a surcharge that is imposed by an investor-owned public community water system on its customers, with the approval of the board, to enable the system to recoup the costs of non-revenue producing infrastructure improvements outside the context of a base rate case.
"Gooseneck, pigtail, or connector" means the short section of flexible piping, usually one to two feet long, which is used to connect rigid sections of service line piping.
"Government-owned public community water system" means a public community water system established, pursuant to law, by a political subdivision of this State or an agency or instrumentality of one or more thereof.
"Investor-owned public community water system" means a public community water system that is a public utility, as defined in R.S.48:2-13, and which is subject to the jurisdiction of the board pursuant to Title 48 of the Revised Statutes.
"Lead service line" means a water supply connection that is made of, or lined with, a material consisting of lead, and which connects a water main to a building inlet. A lead pigtail, lead gooseneck, or other lead fitting shall be considered to be a lead service line, regardless of the composition of the service line or other portions of piping to which such piece is attached. A galvanized service line shall be considered to be a lead service line. A lead service line may be owned by the public community water system, a property owner, or both.
"Non-paying consumer" means the lessee or primary occupant of institutional, commercial, or residential space in a system's service area, who does not receive, and is not required to pay, a water utility bill for water supplied to the property.
"Off-site owner" means the owner of residential, commercial, or institutional property located within the service area of a public community water system, who resides at another property, outside the service area, and who does not receive, and is not required to pay, a water utility bill for water being supplied to the owner's property in the service area.
"Partial replacement" means the act of replacing any service line component without replacing the entire service line.
"Property owner" means the owner of residential, commercial, or educational institution property located within the service area of a public community water system.
"Property-owner side" means the portion of a service line that is owned by a property owner.
"Public community water system" or "system" means a public water system or the owner of a public water system, as that term is defined by section 3 of P.L.1977, c.224 (C.58:12A-3), which system either: has at least 15 service connections that are used by year-round residents; or regularly serves at least 25 year-round residents. "Public community water system" includes an investor-owned public community water system.
"Service line" means any piping, tubing, and fittings connecting a water main to a building that serves a customer of a public water system. "Service line" includes the property-owner side and the system side of a service line.
"System side" means the portion of a service line that is owned by a public community water system.
b. No later than 60 days after the effective date of this act, a public community water system shall compile and submit, to the department, an initial count showing the number of lead service lines and the number of service lines of unknown composition that are known to be present in the system's service area, as well as the number of lead service lines that are to be replaced annually, based on the replacement rate established pursuant to paragraph (1) of subsection b. of section 5 of this act.
c. No later than six months after the effective date of this act, a public community water system shall submit to the department an initial service line inventory. The inventory shall include:
(1) the locations of all identified lead service lines;
(2) an indication as to whether each identified lead service line is completely composed of lead or otherwise meets the definition of a lead service line;
(3) the location of each service line that is suspected to be lead;
(4) for each identified and suspected lead service line, an indication as to whether the line is owned by the public community water system, the property owner, or both;
(5) the locations and compositions of all non-lead service lines; and
(6) a separate list identifying all service lines of unknown composition.
d. The public community water system shall use historical building records and other available information, including data from the American Water Works Association or other industry research groups, to determine the likelihood of the presence of lead service lines in all portions of its service area, as provided by this section.
e. Following the submission of the initial service line inventory pursuant to subsection c. of this section, each public community water system in the State shall continue the inventory process and utilize every reasonable method available to locate all lead service lines within its service area. This process shall include, but shall not be limited to:
(1) visual inspection during planned maintenance, meter replacement, and main replacement projects; and
(2) the solicitation and receipt of comments, complaints, and other input from customers and non-paying consumers in the service area.
f. (1) No later than one year after the effective date of this act, a public community water system shall submit, to the department, an updated inventory of service lines in its service area. The updated inventory shall contain the information required by subsection c. of this section, and shall additionally include:
(a) for each service line suspected of containing lead, supporting information detailing the reasons why each such service line is believed to contain lead; and
(b) for each service line identified as being of unknown composition, a description detailing the steps undertaken to determine whether the line contains lead.
(2) The public community water system shall keep the department informed of its progress pursuant to this subsection, through the annual reports submitted pursuant to the provisions of section 7 of this act. If a public community water system exhausts all other methods of identifying a service line, including the use of new technologies that become available, the department may require excavation, as necessary, to identify the service line.
g. Beginning two years after the effective date of this act, and until such time as all lead service lines have been replaced in accordance with this act, a public community water system shall annually submit to the department:
(1) an updated service line inventory that meets the requirements of subsection f. of this section; and
(2) a statement certifying that the public community water system is in compliance with the provisions of this act.
h. A public community water system shall provide its most recent service line inventory, upon request and at no cost, to appropriate State officials or to the local government officials of a municipality served by the public community water system. A public community water system shall make its most recent service line inventory available on its Internet website. For public community water systems serving fewer than 3,300 customers, whenever an Internet website is not available, the public community water system shall make its most recent service line inventory available in another publicly accessible location.
b. A notice provided pursuant to this section shall:
(1) be sent, by certified mail, to each residential, commercial, or institutional address affected by the known lead service line and addressed to the primary resident or commercial or institutional occupant thereof, as appropriate. Notice shall be sent to all affected addresses, as provided in this paragraph, regardless of whether the resident or occupant is a system customer or is a non-paying consumer;
(2) be sent, by certified mail, to each off-site owner of property affected by the known lead service line and addressed to the property owner's last known address, as determined through the review of local property tax and other available records;
(3) be included in a mailing that is separate and distinct from the water bill that is issued for the property. The notice shall contain large, easily readable text and be presented on distinctly colored paper or other paper that is easily distinguishable from the water billing statement; and
(4) include, at a minimum: (a) a list of the lead service lines that are being used to serve the customer or non-paying consumer; (b) information describing the sources of lead in drinking water, including lead service lines and household plumbing; (c) a description of the health effects of lead exposure; and (d) the steps that system customers and non-paying consumers in the service area can take to reduce their exposure to lead in drinking water.
c. (1) If the recipient of notice provided pursuant to this section is the owner or operator of an apartment building, group home, or other multi-family or multi-unit dwelling, such owner or operator shall provide a hard copy of the notice to each existing resident of the multi-family or multi-unit dwelling and shall additionally post a copy of the notice in a conspicuous location in a common area of the dwelling. The owner or operator shall also inform each new resident of the multi-family or multi-unit dwelling, prior to their residence, about the existence of the lead service line, and shall provide each new resident with a hard copy of the notice received pursuant to this section, upon the commencement of their residence. A notice posted in a common area of a multi-family or multi-unit dwelling, pursuant to this subsection, may be removed only after all of the lead service lines identified in the notice have been replaced and determined to be non-lead service lines.
(2) If the owner or operator of a residential rental property, including an apartment building, group home, or other multi-family or multi-unit dwelling, receives notice pursuant to this section, and the owner or operator offers a dwelling unit within the residential property for rent to a prospective or current tenant, then the lease or renewal agreement shall be conditioned on the owner’s or operator’s commitment not to obstruct a public water system, as defined in section 3 of P.L.1977, c.224 (C.58:12A-3), from replacing a lead service line by denying access to the property owner-side of the lead service line. If the owner or operator obstructs the replacement of a lead service line by denying access to the property owner-side of the lead service line, then the lease or renewal agreement shall remain in effect, but the tenant may terminate the agreement any time thereafter without incurring any charge or penalty otherwise imposed under the agreement for such termination.
(3) Nothing in this section shall be deemed to preclude an owner from seeking to arrange reasonable conditions upon a public water system, its contactors, or subcontractors, specifically with regard to scheduling the replacement of a lead service line and related site restoration work.
d. If a public community water system serves a municipality in which the primary language of 10 percent or more of the residents is a language other than English, the public community water system shall provide the notice required pursuant to subsection a. of this section in both English and the other language spoken by residents.
b. Each lead service line replacement plan and annual update thereto shall:
(1) provide for the average annual replacement of at least 10 percent of all lead service lines that were known to, and identified by, the public community water system on the date it submitted its initial service line replacement plan to the department, pursuant to subsection a. of this section;
(2) provide for the replacement of all lead service lines within the system's service area, no later than 10 years after the effective date of this act, regardless of whether the lines were known or unknown to the public community water system on the date that it submitted its initial plan to the department pursuant to subsection a. of this section. Each public community water system in the State shall be encouraged to complete the replacement of all lead service lines in its service area within 10 years after the effective date of this act, as provided in the system's lead service line replacement plan; however, notwithstanding the provisions of this paragraph to the contrary, the public community water system shall be authorized to continue lead service line replacement activities for a maximum period of 15 years if necessary to enable the system to fully comply with the provisions of this act;
(3) include a plan for notifying consumers of health effects and steps they may take to reduce their exposure to lead before and after any lead service line replacement; and
(4) include any other information or certifications required by the department.
c. (1) Except during an emergency, such as a water main or service line break, or during a water main replacement, a public community water system shall not conduct a partial replacement of a lead service line. In all instances, the public community water system shall make a good faith effort to replace the entire lead service line and shall conduct a partial replacement only as a last resort. A partial replacement of a lead service line shall not count toward the public community water system's replacement requirements pursuant to subsection b. of this section.
(2) A public community water system shall not suspend the water service of a customer solely because of a denial of access to the property owner-side of a lead service line for the replacement of a lead service line pursuant to this act.
d. (1) A public community water system may apply for, and the department may approve, a reasonable extension of any target or deadline set forth in this section if the public community water system demonstrates to the department that the extension is necessary to meet a service reliability demand or public health need, not related to lead abatement, within the system.
(2) A government entity that owns a public community water system may apply for, and the department, in consultation with the Division of Local Government Services in the Department of Community Affairs, may approve, a reasonable extension of any target or deadline set forth in this section if the government-owned system demonstrates to the department that the extension is necessary because the system or the municipality is experiencing financial distress.
e. Notwithstanding the provisions of R.S.40:56-1 to the contrary, any costs incurred by a government-owned public community water system to assess or replace a lead service line pursuant to this act, excluding any portion funded by grants or other subsidies, may be borne by all of the customers of the government-owned public water system or may be assessed to a property of a property owner in the same manner as provided for the assessment of local improvements, pursuant to R.S.40:56-1 et seq., upon notice to the Director of the Division of Local Government Services in the Department of Community Affairs.
(1) the proportionate share of project costs for the replacement of the system side of a lead service line may be incorporated into the rate base as capital assets of the investor-owned public community water system or may be recovered through the use of a Distributed System Improvement Charge as allowed under existing law; and
(2) the proportionate share of project costs for the replacement of the property-owner side of a lead service line, including the investor-owned public community water system's embedded cost of debt, as authorized in its most recent base rate case, shall be treated as an operation and maintenance cost, with no cost of equity additive. Costs for the replacement of property-owner side lead service lines incurred since the investor-owned public community water system's last base rate case and incurred until all property-owner side lead service lines have been eliminated from the investor-owned public community water system shall be recoverable on a semi-annual basis through a separate lead service line expense surcharge and not imbedded into base rates.
b. In order to recoup the costs of lead service line replacements from its customers, as provided by subsection a. of this section, an investor-owned public community water system shall submit to the board, for approval at its next general rate case proceeding, a petition that includes a proposal for cost recoupment. The proposal shall contain the following information:
(1) the estimated total cost to replace both the property-owner side and the system side of all lead service lines that lie within, or are connected to, the system's service area, including, but not limited to, the estimated total cost to evaluate service lines of unknown composition and to replace both the property-owner side and system side of any such lines that are determined to be lead service lines, and an estimated range for the annual cost to be incurred by the system under the system's current lead service line replacement plan;
(2) the availability of grants or low interest loans and whether the investor-owned public community water system plans to use available grants or low interest loans to help the system finance or reduce lead service line replacement costs, including a detailed description of any efforts made by the system to secure such financing;
(3) the investor-owned public community water system's proposed rate treatment of the replacement costs, including:
(a) any proposed deferred accounting treatment of the costs;
(b) the proposed rate base treatment of the costs, and whether and how the system is planning to effectuate system side cost recoupment through the use of a Distributed System Improvement Charge or alternate recoupment methodology approved by the board;
(c) the proposed operations and maintenance expense treatment of the costs; and
(d) the average monthly residential bill impact of the proposed rate treatment of the costs;
(4) a description of how the replacement of lead service lines will be accomplished in conjunction with other replacement projects in the system's service area;
(5) the estimated savings, per lead service line, that will be achieved by requiring the investor-owned public community water system, and not the property owner, to replace the property-owner sides of lead service lines in the service area; and
(6) the means and methods that will be used by the system to:
(a) inform all system customers and non-paying consumers in the system's service area about the system's lead service line replacement plan; and
(b) document each customer's consent, or lack of consent, to the replacement of a lead service line.
c. Before an investor-owned public community water system may be authorized by the board to recoup the costs of lead service line replacements from its customers, pursuant to this section, the board shall ensure that the department has received the system's inventory, as required by section 3 of this act.
b. The Board of Public Utilities may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to implement the provisions of this act.
c. The Department of Environmental Protection and the Board of Public Utilities shall consult with one another and with the Division of Local Government Services in the Department of Community Affairs when adopting rules and regulations pursuant to this section.
All portions of Essex, Union, Passaic, Bergen and Hudson counties, beginning in the center of Newark Bay where the boundary line between the cities of Newark and Elizabeth also being the boundary line between the counties of Essex and Union meets the boundary of Hudson County; thence running westerly along the boundary line between the city of Newark and the city of Elizabeth, including the area of Newark International Airport in the city of Elizabeth with flows tributary to the airport, to the point where it meets the boundary line of the township of Hillside; thence running northerly along the boundary line between the city of Newark and the township of Hillside until it intersects Bergen Street; thence running southwesterly along Bergen Street and Bergen Street extended to a point halfway between Bailey Avenue and Williamson Avenue in the township of Hillside; thence running northwesterly and halfway between Bailey Avenue and Williamson Avenue to Maple Avenue; thence running northwesterly and approximately 150 feet north of and parallel to the center line of Williamson Avenue to a point halfway between Bayview Avenue and Summit Avenue; thence running northeasterly and halfway between Bayview Avenue and Summit Avenue in the township of Hillside, and this line extended, to a point which is halfway between Weequahic Avenue and Lyons Avenue and approximately 500 feet west of the center line of Aldine Street in the city of Newark; thence running southeasterly and halfway between Weequahic Avenue and Lyons Avenue to a point which is approximately 125 feet east of Aldine Street; thence running northeasterly and halfway between Aldine Street and Clinton Place to a point on Bragaw Avenue which is again halfway between Aldine Street and Clinton Place; thence running northwesterly to a point on Aldine Street which is halfway between Bragaw Avenue and Demerest Street; thence running northerly to the intersection of Demerest Street and Nye Avenue; thence running westerly along Nye Avenue to a point halfway between Hobson Street and Dewey Street; thence running southerly and halfway between Hobson Street and Dewey Street to a point approximately 300 feet south of Nye Avenue; thence running westerly to a point on Leslie Street which is approximately 400 feet south of Nye Avenue; thence running southwesterly to the intersection of Wainright Street and Bragaw Avenue; thence running northerly to the intersection of Nye Avenue and Schley Street; thence running westerly along Nye Avenue to the boundary line between the city of Newark and the township of Irvington; thence running northerly along the boundary line between the city of Newark and the township of Irvington to a point which is approximately 600 feet north of Hopkins Place at the extension of Madison Avenue from the township of Irvington; thence running northerly to the intersection of Montgomery Street and South 20th Street in the city of Newark; thence running northeasterly to a point on Avon Avenue which is halfway between South 19th Street and South 20th Street; thence running northerly, and halfway between South 19th Street and South 20th Street to a point which is approximately 400 feet north of Springfield Avenue; thence running easterly and perpendicular to South 19th Street to a point halfway between South 19th Street and South 18th Street; thence running northerly, and halfway between South 19th Street and South 18th Street to a point which is approximately 400 feet north of 19th Avenue; thence running easterly and perpendicular to South 18th Street to a point halfway between South 18th Street and South 17th Street; thence running northerly and halfway between South 18th Street and South 17th Street to a point which is approximately 350 feet north of 18th Avenue; thence running easterly and perpendicular to South 17th Street to a point approximately 150 feet east of South 17th Street; thence running northerly, parallel to and approximately 150 feet east of South 17th Street to a point approximately 100 feet south of 15th Avenue; thence running easterly, parallel to and approximately 100 feet south of 15th Avenue to a point which is halfway between South 16th Street and South 15th Street; thence running northerly and halfway between South 16th Street and South 15th Street to a point which is approximately 200 feet north of 14th Avenue; thence running northeasterly to a point which is halfway between South 14th Street and Ashland Street and approximately 350 feet north of 14th Avenue; thence running northeasterly, parallel to and approximately 150 feet west of Ashland Street to a point which is approximately 150 feet north of South Orange Avenue; thence running northwesterly, parallel to and approximately 150 feet north of South Orange Avenue to a point which is approximately 150 feet east of South 18th Street; thence running northerly, parallel to and approximately 150 feet east of South 18th Street to a point approximately 350 feet south of 12th Avenue; thence running westerly to a point on South 20th Street which is approximately 250 feet south of 12th Avenue; thence running southerly on South 20th Street to a point which is approximately 150 feet north of Grain Street; thence running westerly, parallel to and approximately 150 feet north of Grain Street to a point which is halfway between South 20th Street and Grove Street; thence running northerly, and halfway between Grove Street and South 20th Street for approximately 300 feet to a point; thence running westerly and perpendicular to Grove Street to a point approximately 100 feet west of Grove Street; thence running northeasterly, parallel to and approximately 100 feet west of Grove Street to the boundary line between the city of Newark and the city of East Orange; thence running westerly along the boundary between the city of Newark and the city of East Orange for approximately 500 feet to a point; thence running northerly to a point which is halfway between Hawthorne Place and Birchwood Avenue and approximately 150 feet south of Garfield Place, all in the city of East Orange; thence running northerly and halfway between Hawthorne Place and Birchwood Avenue to a point on Central Avenue; thence running westerly along Central Avenue to its intersection with South Oraton Parkway; thence running northerly along South Oraton Parkway for approximately 150 feet to a point; thence running westerly, parallel to and approximately 150 feet north of Central Avenue to a point which is approximately 150 feet east of South Munn Avenue; thence running southerly parallel to South Munn Avenue and then halfway between South Munn Avenue and Watson Avenue to a point on this line approximately 150 feet south of Elmwood Avenue extended; thence running westerly, parallel to and 150 feet south of Elmwood Avenue to a point halfway between South Munn Avenue and Freeman Avenue; thence running southerly halfway between South Munn Avenue and Freeman Avenue to a point which is approximately 150 feet north of Rhode Island Avenue; thence running westerly, parallel to and approximately 150 feet north of Rhode Island Avenue to a point which is halfway between Freeman Avenue and Oak Street; thence running northerly and halfway between Oak Street and Freeman Avenue to the intersection of Elmwood Avenue and South Arlington Avenue; thence running northerly along South Arlington Avenue to a point which is approximately 100 feet south of Central Avenue; thence running westerly, parallel to and 100 feet south of Central Avenue to Nassau Place; thence running northerly along Nassau Place to its intersection with Central Avenue; thence running westerly along Central Avenue to a point approximately 150 feet east of Shepard Avenue; thence running northerly, parallel to and approximately 150 feet east of Shepard Avenue to a point approximately 150 feet south of Carnegie Avenue; thence running westerly, parallel to and approximately 150 feet south of Carnegie Avenue to a point approximately 150 feet west of Shepard Avenue; thence southerly, parallel to and approximately 150 feet west of Shepard Avenue to a point which is halfway between Carnegie Avenue and Central Avenue; thence running westerly and halfway between Carnegie Avenue and Central Avenue to a point which is approximately 150 feet east of South Burnet Street; thence running southerly, parallel to and approximately 150 feet east of South Burnet Street to a point which is approximately 150 feet north of Central Avenue to a point halfway between South Burnet Street and South Clinton Street; thence running southerly and halfway between South Burnet Street and South Clinton Street to a point which is approximately 400 feet south of Central Avenue; thence running westerly to a point which is halfway between Amherst Street and Halsted Street and approximately 700 feet south of Central Avenue; thence running northerly and halfway between Amherst Street and Halsted Street to a point which is approximately 100 feet south of Freeway Drive East; thence running westerly, parallel to and approximately 100 feet south of Freeway Drive East to a point which is halfway between Evergreen Place and South Harrison Street; thence running southerly and halfway between Evergreen Place and South Harrison Street for a distance of approximately 650 feet; thence running westerly to a point on the boundary line between the city of East Orange and the township of the City of Orange, said point being approximately 200 feet south of Berwin Street along said boundary; thence running southwesterly along the boundary line between the township of the City of Orange and city of East Orange to where it meets the boundary line of the village of the Township of South Orange; thence running southerly to the intersection of South Center Street and Sterling Avenue, both being in the village of the Township of South Orange; thence running westerly to the corner boundary between the township of the City of Orange and the village of the Township of South Orange which is approximately 200 feet south of Stirling Avenue; thence running northwesterly along said boundary between the township of the City of Orange and the village of the Township of South Orange to an angle point which is halfway between Mosswood Avenue and Irving Terrace; thence running northerly to the intersection of Irving Terrace and Lawn Ridge Road; thence running westerly to where Berkeley Avenue intersects the boundary line between the township of the City of Orange and the village of the Township of South Orange; thence running northwesterly along the boundary line between the township of the City of Orange and the village of the Township of South Orange for a distance of approximately 100 feet; thence running northeasterly, parallel to and approximately 100 feet west of Berkeley Avenue to Lawn Ridge Road; thence running southeasterly along Lawn Ridge Road to a point approximately 100 feet east of Berkeley Avenue; thence running northeasterly, parallel to and approximately 100 feet east of Berkeley Avenue to Heywood Avenue; thence running northwesterly along Heywood Avenue to a point approximately 150 feet west of Berkeley Avenue; thence running northeasterly, parallel to and approximately 150 feet west of Berkeley Avenue to a point which is approximately 150 feet south of Tremont Avenue; thence running northwesterly, parallel to and approximately 150 feet south of Tremont Avenue to Scotland Road; thence running northeasterly along Scotland Road to its intersection with Glebe Street; thence running northwesterly along Glebe Street to its intersection with South Jefferson Street; thence running northerly to a point on the center line of Interstate Highway Route 280 in the township of West Orange being approximately 100 feet west of the boundary line between the township of West Orange and the township of the City of Orange; thence running northerly, parallel to and approximately 100 feet west of said boundary between township of West Orange and the township of the City of Orange to a point which is approximately 200 feet south of White Street; thence running northwesterly to the intersection of Main Street and White Street; thence running northerly and halfway between Main Street and Ashland Avenue to the intersection of Main Street and Park Avenue; thence running northerly along Main Street to its intersection with Babcock Place; thence running northerly to the intersection of Main Street and William Street with the district boundary to include the properties on Babcock Place, Kling Street, Washington Street and William Street but exclude the property along Main Street; thence running easterly to the intersection of Whittesley Avenue and Ridge Avenue; thence running northerly and halfway between Whittesley Avenue and Watson Avenue to the intersection of Watson Avenue and Samuel Street; thence running northerly, crossing the boundary between the township of West Orange and the township of Montclair to the intersection of High Street and Amelia Street in the township of Montclair; thence running northwesterly to the intersection of Virginia Avenue and Fremont Street; thence running westerly to where Nishuane Road intersects the boundary line between the township of Montclair and the township of West Orange; thence running northwesterly along said boundary line between the township of West Orange and township of Montclair to an angle; thence running northerly further along said boundary line between the township of West Orange and township of Montclair to its intersection with the boundary line of the township of Verona; thence running northerly along the boundary line between the township of Montclair and the township of Verona to where it intersects the boundary line of Cedar Grove Township; thence running northerly along the boundary line between the township of Montclair and Cedar Grove Township to its intersection with the boundary line of the township of Little Falls; thence running northwesterly along the boundary line between Cedar Grove Township and the township of Little Falls to where it intersects Lindsley Road; thence running northwesterly along Lindsley Road within Cedar Grove Township to where it intersects with New Jersey State Highway Route Number 23; thence running southerly along New Jersey State Highway Route Number 23 for a distance of approximately 1,200 feet; thence running westerly for approximately 1,200 feet to the boundary between Cedar Grove Township and the township of North Caldwell, said point being approximately 1,000 feet south of an angle in said boundary near Lindsley Road; thence running northerly for approximately 1,000 feet along said boundary between Cedar Grove Township and the township of North Caldwell to an angle; thence running northwesterly in said boundary between Cedar Grove Township and the township of North Caldwell to another angle; thence running northwesterly in said boundary between Cedar Grove Township and the township of North Caldwell to where it intersects the water transmission line of the Jersey City Water Company; thence running westerly along said water transmission line of the Jersey City Water Company within the township of North Caldwell to where it intersects Grandview Place; thence running northeasterly along the center line of Grandview Place and then Grandview Avenue to a point approximately 175 feet south of Fairfield Road; thence running northwesterly and then northeasterly along and encompassing Lot Number 3, Block Number 105 on the North Caldwell Tax Map to a point where Lot Number 3 intersects Fairfield Road; thence running northwesterly along Fairfield Road for approximately 85.61 feet to a point; thence running southwesterly and then northwesterly along and encompassing Lot Numbers 4, 7 and 8 in Block Number 105 on the North Caldwell Tax Map to a point where it intersects Fairfield Road and the boundary line between the township of North Caldwell and the township of Fairfield; thence running northeasterly along the boundary line between the township of Fairfield and the township of North Caldwell to a point in the center of the Passaic River and the intersection with the boundary lines of the township of Little Falls and the township of Wayne; thence running downstream along the Passaic River in a northeasterly and then southeasterly direction, the river being the boundary line between the township of Little Falls and the township of Wayne, to where it intersects with the boundary line of the borough of Totowa; thence running northwesterly along the boundary line between the township of Wayne and the borough of Totowa to the intersection with the northerly right-of-way limit with U.S. Interstate Highway Route 80; thence running westerly along the U.S. Interstate Highway Route 80 right-of-way for a distance of approximately 1,200 feet and thence in a northerly and westerly direction to a point in the center line of Singac Brook and thence northeasterly to the boundary line between the township of Wayne and the borough of Totowa to encompass Lot 1 in Block 402 on the Wayne tax map; thence running northerly and then northeasterly along the boundary line between the township of Wayne and the borough of Totowa to where it intersects the boundary line of the borough of Haledon; thence running northerly along the boundary line between the township of Wayne and the borough of Haledon to where it intersects the boundary line of the borough of North Haledon; thence running northerly along the boundary line between the township of Wayne and the borough of North Haledon to where it intersects the boundary line of the borough of Franklin Lakes; thence running easterly along the boundary line between the borough of Franklin Lakes and the borough of North Haledon to where it intersects the boundary line of the township of Wyckoff; thence running easterly along the boundary line between the township of Wyckoff and the borough of North Haledon to the boundary line of the borough of Hawthorne; thence running northerly along the boundary line of the township of Wyckoff and the borough of Hawthorne to an angle on Goffle Hill Road; thence running southeasterly along said boundary line between the township of Wyckoff and the borough of Hawthorne to the boundary line of the village of the Township of Ridgewood; thence running southeasterly along the boundary line between the village of the Township of Ridgewood and the borough of Hawthorne to the boundary line of the borough of Glen Rock; thence running northeasterly along the boundary line between the village of the Township of Ridgewood and the borough of Glen Rock for 2,730 feet to an angle; thence running easterly along said boundary line between the village of the Township of Ridgewood and the borough of Glen Rock for 3,230 feet to an angle; thence running along said boundary line between the village of the Township of Ridgewood and the borough of Glen Rock for the 12 angles, courses and distances until it intersects Grove Street and the center line of Hohokus Brook; thence running southerly still along said boundary line between the village of the Township of Ridgewood and the borough of Glen Rock, it being the center line of Hohokus Brook, to its intersection with the center line of the Saddle River which is also where the boundary lines of the borough of Fair Lawn and the borough of Paramus meet; thence running southerly along the boundary line between the borough of Fair Lawn and the borough of Paramus which is generally the center line of the Saddle River to its intersection with the boundary lines of the township of Saddle Brook and the township of Rochelle Park; thence running southerly along the boundary line between the township of Saddle Brook and the township of Rochelle Park which is generally the center line of the Saddle River to its intersection with the boundary line of the borough of Lodi; thence running southeasterly along the boundary line between the borough of Lodi and the township of Rochelle Park to its intersection with the boundary line of the borough of Maywood; thence running southeasterly along the boundary line between the borough of Lodi and the borough of Maywood being the center line of Essex Street to the center line of New Jersey State Highway Route Number 17; thence running southerly along New Jersey State Highway Route Number 17 southbound within the borough of Lodi to the boundary line of the city of Hackensack; thence running southerly along the boundary line between the borough of Lodi and the city of Hackensack to a point which is approximately 620 feet north of the center line of West Pleasantview Avenue along said boundary line; thence running south 52 degrees, 51 minutes, 11 seconds east and within the city of Hackensack for 533.97 feet to a point; thence running south 36 degrees, 36 minutes, 34 seconds west for 384.60 feet to a point; thence running north 52 degrees, 50 minutes west for 15.00 feet to a point; thence running south 36 degrees, 36 minutes, 34 seconds west for approximately 198 feet to the center line of West Pleasantview Avenue; thence running northwesterly along West Pleasantview Avenue to where it intersects the boundary line between the city of Hackensack and the borough of Lodi; thence running southerly along the boundary line between the borough of Lodi and the city of Hackensack to the boundary line of the borough of Hasbrouck Heights; thence running southerly along the boundary line between the borough of Lodi and the borough of Hasbrouck Heights through angles at Church Street, Williams Avenue, Oak-Grove Avenue and between Paterson Avenue and Ottawa Street in a northwesterly direction to Woodside Avenue; thence running southwesterly along Woodside Avenue within the borough of Hasbrouck Heights to where it intersects the boundary line between the borough of Hasbrouck Heights and the borough of Lodi, between LaSalle Avenue and Hunter Street; thence running southwesterly along the boundary line between the borough of Lodi and the borough of Hasbrouck Heights to the boundary line of the borough of Wood-Ridge; thence running southeasterly along the boundary line between the borough of Hasbrouck Heights and the borough of Wood-Ridge to an angle on Passaic Avenue; thence running southwesterly along said boundary line between the borough of Hasbrouck Heights and the borough of Wood-Ridge to an angle between Lincoln Avenue and Sussex Road; thence running southwesterly within the borough of Wood-Ridge in prolongation of the line above and along the property line of Curtis-Wright Inc. to Highland Avenue; thence running northwesterly along the property line of Curtis-Wright Inc. which is a prolongation of Highland Avenue extended northwesterly to where it intersects the boundary line between the borough of Wood-Ridge and the borough of Wallington; thence running southerly along the boundary line between the borough of Wood-Ridge and the borough of Wallington to where it meets the boundary line of the borough of Carlstadt; thence running southerly along the boundary line between the borough of Wallington and the borough of Carlstadt to where it meets the boundary line of the borough of East Rutherford; thence running northwesterly along the boundary line between the borough of Wallington and the borough of East Rutherford to a point halfway between Shepard Terrace and Atkins Terrace; thence running southwesterly within the borough of East Rutherford and halfway between Shepard Terrace and Atkins Terrace with an angle to the south and another to the southwest to a point on the boundary line between the borough of Rutherford and the borough of East Rutherford which is halfway between Atkins Terrace and Willow Street; thence running southerly to a point on Erie Avenue in the borough of Rutherford which is halfway between Walnut Street and Carmita Avenue; thence running southwesterly and halfway between Walnut Street and Carmita Avenue to the center of Washington Avenue; thence running southeasterly along Washington Avenue to the intersection of Washington Avenue and Carmita Avenue; thence running southwesterly along Carmita Avenue for a distance of approximately 130 feet to a point; thence running southeasterly parallel to and approximately 130 feet south of Washington Avenue to a point which is halfway between Carmita Avenue and Prospect Place; thence running southwesterly and halfway between Carmita Avenue and Prospect Place to a point which is approximately 127 feet north of the center line of Union Avenue; thence running southeasterly parallel to and approximately 127 feet north of Union Avenue to the center of Prospect Place; thence running southwesterly along Prospect Place to the intersection of Union Avenue; thence running northwesterly along Union Avenue to a point halfway between Carmita Avenue and Prospect Place; thence running southwesterly and halfway between Carmita Avenue and Prospect Place to a point approximately 150 feet north of the center line of Alwyn Terrace; thence running southeasterly to a point which is approximately 165 feet east of Prospect Place and in a prolongation of the center line of Circle Lane; thence running southwesterly parallel to and approximately 165 feet east of Prospect Place to a point which is approximately 170 feet north of Fairview Avenue; thence running southeasterly, parallel to and approximately 170 feet north of Fairview Avenue to the center of Montross Avenue; thence running southwesterly along Montross Avenue to a point which is approximately 170 feet south of the center of Fairview Avenue; thence running southeasterly, parallel to and approximately 170 feet south of Fairview Avenue for approximately 230 feet to a point; thence running southwesterly, parallel to and approximately 230 feet east of Montross Avenue to the center of Passaic Avenue; thence running southeasterly along Passaic Avenue for approximately 250 feet to a point; thence running southwesterly and parallel to Montross Avenue to a point halfway between Passaic Avenue and Donaldson Avenue; thence running southeasterly and halfway between Passaic Avenue and Donaldson Avenue for approximately 306 feet; thence running southwesterly and parallel to Montross Avenue to a point halfway between Donaldson Avenue and Woodward Avenue; thence running southeasterly and halfway between Donaldson Avenue and Woodward Avenue to the center of Mortimer Avenue; thence running southwesterly along Mortimer Avenue to the center of Park Place; thence running southeasterly along Park Place a distance of approximately 131 feet to a point; thence running southwesterly, parallel to and approximately 131 feet east of Mortimer Avenue for a distance of approximately 150 feet; thence running southeasterly, parallel to and approximately 151 feet south of Park Place to the center of Park Avenue; thence running southwesterly along Park Avenue to a point halfway between Newell Avenue and Addison Avenue; thence running southeasterly and halfway between Newell Avenue and Addison Avenue to a point approximately 130 feet west of the center line of Lincoln Avenue; thence running southwesterly, parallel to and approximately 130 feet west of Lincoln Avenue to a point which is approximately 170 feet north of the center of Pierrepont Avenue; thence running southeasterly, parallel to and approximately 170 feet north of Pierrepont Avenue to a point which is approximately 190 feet west of the center of Ridge Road; thence running southwesterly, parallel to and approximately 190 feet west of Ridge Road to a point which is approximately 200 feet north of Woodland Avenue; thence running southeasterly, parallel to and approximately 200 feet north of Woodland Avenue to a point halfway between Ridge Road and Sylvan Street; thence running southwesterly and halfway between Ridge Road and Sylvan Street and this line extended to the boundary line between the borough of Rutherford and the township of Lyndhurst; thence running southeasterly along the boundary line between the borough of Rutherford and the township of Lyndhurst which is Rutherford Avenue and Rutherford Avenue extended to the center line of Berry's Creek; thence running southerly along the center line of Berry's Creek, being said boundary line between the borough of Rutherford and the township of Lyndhurst to where it intersects the boundary line of the town of Secaucus at the center of the Hackensack River; thence running southerly along the center line of the Hackensack River being the boundary line between the township of Lyndhurst and the town of Secaucus to where it intersects the boundary line of the town of Kearny at Sawmill Creek; thence running southerly still along the center line of the Hackensack River being the boundary line between the town of Kearny and the town of Secaucus to where it intersects the boundary line of the city of Jersey City at Penhorn Creek; thence running northeasterly along the center of Penhorn Creek being the boundary line between the town of Secaucus and the city of Jersey City to where it intersects the boundary line of the township of North Bergen at Secaucus Road; thence running southwesterly along the center of Secaucus Road being the boundary line between the city of Jersey City and the township of North Bergen to where it intersects the boundary of the city of Union City at J.F. Kennedy Boulevard; thence running northerly along J.F. Kennedy Boulevard being the boundary line between the township of North Bergen and the city of Union City to 18th Street; thence running easterly along 18th Street within the city of Union City to Summit Avenue; thence running southerly along Summit Avenue to 17th Street; thence running easterly along 17th Street to Central Avenue; thence running southerly along Central Avenue to 16th Street; thence running easterly on 16th Street to Palisade Avenue; thence running southerly on Palisade Avenue to Paterson Plank Road which is the boundary line between the city of Jersey City and the city of Union City; thence running easterly along Paterson Plank Road being the boundary line between the city of Union City and the city of Jersey City until it intersects the boundary line of the city of Hoboken; thence running southwesterly between the city of Hoboken and the city of Jersey City to a point just crossing over Hoboken Avenue; thence running easterly and parallel to Hoboken Avenue along said boundary line between the city of Hoboken and the city of Jersey City to Henderson Street; thence running easterly along said boundary line between the city of Hoboken and the city of Jersey City to a point in the Hudson River being the modified Pierhead Line of January 12, 1931; thence running southerly along the modified Pierhead Line of January 12, 1931 10,250 feet to a point; thence running southwesterly for 935 feet to a point; thence continuing in a southwesterly direction for 2,354 feet to a point which is on the west side of Ellis Island; thence running southwesterly for 1,945 feet to a point which is on the southwest side of Ellis Island; thence running southerly for 557 feet to a point; thence running easterly 984 feet to a point; thence running southerly for 1,363 feet to a point north of Liberty Island; thence running westerly for 300 feet to the Pierhead and Bulkhead Line adopted March 6, 1939; thence running southwesterly for 1,525 feet to the south side of Morris Pesin Drive if projected eastwardly 1,650 feet; thence running in a southerly direction along the Pierhead and Bulkhead Line for 9,500 feet to a point that intersects the boundary line between the city of Jersey City and the city of Bayonne; thence running southeasterly along the boundary line between the city of Jersey City and the city of Bayonne to where it intersects with the boundary line between the State of New Jersey and the State of New York; thence running southerly and westerly along the boundary line between the states of New York and New Jersey through New York Bay, the Kill Van Kull and Newark Bay to where it intersects the boundary line between Union County and Hudson County; thence running northerly along the boundary between Union County and Hudson County, being the boundary line between the city of Elizabeth and the city of Bayonne in Newark Bay to its intersection with the boundary line of the county of Essex to the point or place of the beginning, constituted a sewerage district under the name and title of Passaic Valley Sewerage District by the act entitled "An act to create a sewerage district to be called Passaic Valley Sewerage District," approved March 27, 1902 (L.1902, c.48, p.190), as supplemented by the act approved April 14, 1914 (L.1914, c.160, p.294), and by the act approved March 8, 1924 (L.1924, c.94, p.184), hereinafter in this chapter designated as the "district" and the commission appointed thereunder, are continued, and it shall be entitled to all the authority and be subject to all the laws of this State concerning sewerage districts so created. < Amended 1964,c.139; 1979,c.426; 1991,c.212,s.1; 1995,c.122,s.1.
The board of commissioners known as the Passaic valley sewerage commissioners, the first members of which were appointed under the act entitled "An act authorizing the appointment and defining the powers and duties of commissioners in sewage and drainage districts created for the purpose of relieving the streams and rivers therein from pollution, and to provide a plan for the prevention thereof and providing for the raising, expenditure and payment of moneys necessary for this purpose," approved March twenty-seventh, one thousand nine hundred and two (L.1902, c. 49, p. 195), is continued as a body politic and corporate, with perpetual succession under said name of Passaic valley sewerage commissioners, hereinafter in this chapter designated as the "commissioners" , with power to sue and be sued and to adopt and use a corporate seal, and with the right, power and authority to acquire, hold, use and dispose of all such property, real and personal, as may be proper or necessary, and with all other power and authority proper or necessary to carry out and effectuate the purposes for which the board is created.
The board shall consist of nine members who shall be appointed by the Governor in the following manner. Each county in the district shall be represented on the board by two members, of different political parties, both of whom shall reside in the district and in the county they represent. At least one of the two members from each county must reside in a contracting municipality as defined in R.S.58:14-34.11 or in a leasing municipality. Not more than five of the nine members of the board shall be from the same political party. The ninth member shall be an at-large member appointed by the Governor, with the advice and consent of the Senate, and shall serve during the term of office of the Governor. As used in this section, "at-large member" means a resident of the Passaic Valley Sewerage District as defined in R.S.58:14-1. Upon the expiration of the term of office of a commissioner, his successor shall be appointed by the Governor, by and with the advice and consent of the Senate, for a term of five years, except that the term of the at-large member shall be concurrent with the term of office of the Governor. The Governor may remove any commissioner from office for cause. Each commissioner shall hold his office until his successor has been appointed, and any vacancy in the membership of the commission because of death, resignation or removal, shall be filled for the unexpired term in the manner provided for on original appointment. In making any appointment hereunder, either for a full term or to fill a vacancy, regard shall be had to ability and fitness, and also locality, so that each section of the district may be represented as far as practicable. Amended 1941,c.99; 1975,c.151; 1991,c.145,s.1.
Each of the commissioners shall, before entering upon the duties of his office, take and subscribe an oath that he will faithfully and impartially execute and perform the duties imposed upon him by law, and shall cause the same to be filed in the office of the Secretary of State. The commissioners shall each receive for service under this chapter an annual salary of $10,000.00, payable in equal monthly installments, and they shall receive no other compensation than that herein provided. Amended by L. 1953,c.370; 1975,c.153; 1987,c.337.
No commissioner shall be directly or indirectly interested in any contract awarded under the provisions of this chapter, nor in furnishing materials or supplies therefor to any contractor, nor in furnishing security for the performance of any contract. If at any time it shall appear to the satisfaction of the governor that any commissioner is or has been so interested, or is or has been a stockholder in any corporation furnishing material or supplies to any contractor for work done or to be done under the provisions of this chapter, or that he is the owner of any lands or water or water rights taken or to be taken or used in or for the construction of any work under the provisions of this chapter, or a stockholder in any corporation owning or leasing any such lands or waters or water rights, the governor shall remove such commissioner from office forthwith, and all contracts made by the commissioners wherein any such commissioner shall have been interested, directly or indirectly, as aforesaid, or otherwise, shall thereupon become and be null and void, and no further payments on account thereof shall be made by the commissioners.
The commissioners shall annually on the first Tuesday in May organize by the choice of a chairman and a vice chairman, who shall be members of the board, and a treasurer and a clerk, who may or may not be members of the board. The commissioners may, from time to time, appoint such other officers, attorneys, agents, engineers, employees and assistants as they may deem necessary to carry out the purposes of this chapter, and may prescribe their duties, fix their compensation and remove them at pleasure.
Whenever the employees of Passaic Valley Sewerage Commissioners shall have formed themselves into a group for the purpose of obtaining the advantages of a group plan for any hospital service and have filed with said commissioners written petition and authorizations signed by the employees, said commissioners may by resolution authorize the deductions specified in the written petition and authorizations of the payment thereof. L.1956, c. 103, p. 478, s. 1.
Passaic Valley Sewerage Commissioners may pay as additional compensation to the individual members of the group a part or all of the premium or charge for such hospital service plan provided, however, that anything herein contained shall not be construed as compelling Passaic Valley Sewerage Commissioners to pay such premium or part thereof. L.1956, c. 103, p. 478, s. 2.
No sewage or other polluting matter shall be discharged, directly or indirectly, into the waters of the Passaic river at any point between the Great falls in the city of Paterson and the mouth of said river at Newark bay, or into the waters of any of the tributaries of said river which empty into it between said points, and the commissioners may enforce the provisions of this chapter over and throughout all municipalities which may, or the inhabitants of which may, directly or indirectly, discharge sewage or other polluting matter into said waters. The commissioners may institute in their corporate name such civil actions as may be deemed necessary or appropriate to enforce the provisions of this section, and the Superior Court is hereby vested with jurisdiction to enforce said provisions by such actions brought by the commissioners. The court may proceed in such actions in a summary manner or otherwise. Amended by L.1953, c. 54, p. 963, s. 32.
No sewage, waste matter, article or substance, liquid or solid, of any kind which creates odors, gases or fumes, due to the putrefaction of organic matter or the presence of chemicals, or results in the presence of oil or grease on the surface of the waters of the Passaic river, or its tributaries, shall be placed or discharged, or be permitted to be placed or discharged, into the waters of said river between the points designated in section 58:14-7 of this title, or into its tributaries so designated. Whoever, other than a municipal corporation, after not less than ten days' nor more than six months' notice by the commissioners, violates the provisions of this section shall be liable to a penalty of one hundred dollars, and a further penalty of twenty-five dollars a day for each day the offense is continued, to be sued for and recovered by and in the name of the commissioners.
The governing body or board having charge of finances of any municipality, lying in whole or in part within the district may, by resolution, determine that it is advisable and to the interest of the municipality, in order to comply with the provisions of this chapter, to cause the sewage and other polluting matter discharging or which may be discharged into the waters of the Passaic river from its territory within the district to be intercepted by a trunk or main intercepting sewer or sewers and to be conducted to a safe and proper place for discharge and disposal thereat, and may, by said resolution, request the commissioners to prepare and submit maps, plans and specifications for the construction of a joint trunk or main intercepting sewer or sewers and the necessary works for the conduct, discharge and disposal of sewage and other polluting matter as aforesaid, together with an estimate of the probable cost of such construction, and the operation and maintenance thereof, and of obtaining the necessary property rights for said construction, and an estimate of the sewage capacity in said trunk sewer or sewers required by each municipality lying in whole or in part within the district, and also an estimate of the proportion of said cost of construction, as near as may be, which would be apportioned to each of said municipalities, upon the basis expressed in section 58:14-13 of this title.
The municipality making such request shall, in and by said resolution, agree to pay the commissioners the cost, not exceeding ten thousand dollars, of preparing the maps, plans, specifications and estimates so requested, and shall, at the time of making such request, pay as part of said expenses the sum of five thousand dollars to the commissioners. Such municipality, acting by the body or board having charge of its finances, may, at its discretion, by resolution, agree also to advance and pay to the commissioners for their use in making further investigations and preparing detail plans and specifications, moneys in installments or otherwise, not exceeding sixty thousand dollars, and if more than one municipality lying in whole or in part within the district agree to advance and pay moneys to the commissioners for said purposes, the amount of moneys so to be advanced and paid by said municipalities shall not exceed, in the aggregate, one hundred and fifty thousand dollars. Money so to be paid by a municipality may be appropriated and paid from any fund or balance not otherwise appropriated, and may be raised by temporary loans, notes or bonds, and shall be repaid to it, with interest at the rate of five per cent per annum, when the contract shall have been entered into for the building of said sewer, plant or works as hereinafter provided.
Upon receiving a copy of such resolution authenticated by the clerk or other like officer of one or more of such municipalities, the commissioners shall forthwith prepare the maps, plans, specifications and estimates so requested, and copies thereof shall be delivered by the clerk of the commissioners to each of the clerks or other like officers of all the municipalities lying in whole or in part within the district. An accurate record of the time and manner of the delivery by him of such copies to the clerks of such municipalities shall be made by the clerk of the commissioners and entered upon the minutes of the commissioners. A like record shall be kept by the clerks of the municipalities and be entered upon the minutes of the boards or bodies having charge of the finances in such municipalities respectively. The commissioners, in preparing the maps, plans and specifications as herein provided, and in making the estimate of the sewage capacity required for each municipality, shall have regard both to the area and population to be provided for, making provision, however, for not more than ten per cent of the factory waste and excluding all waste from gas works and all substances or discharges which may injuriously affect the integrity of the sewer when constructed.
Any two or more of said municipalities, at any time after the expiration of three months from the date of the delivery of copies of the maps, plans, specifications and estimates as aforesaid, may, by resolution of their governing bodies or boards having charge of their finances, enter into a contract in writing with each other and with the commissioners, in their corporate capacities, for the construction, maintenance and operation of said sewer, plant and works, with the appurtenances, or of so much thereof as may be necessary and appropriate for the contracting municipalities, together with works, machinery, appliances and other things requisite or useful for the purposes to be accomplished by the intercepting sewer, and for the purchase of lands, rights in lands and other property requisite or useful therefor. The contract herein authorized shall generally describe the route, line, size and capacity of such intercepting sewer and shall fix the percentage of the capacity therein, to the use of which each of the contracting municipalities shall be entitled, together with the percentage of the cost and expense of construction, repair, maintenance and operation of the same to be paid by each of the contracting municipalities.
The cost of the construction of said sewer, plant and works shall in the contract be apportioned to the respective contracting municipalities in such proportion as the taxable property, real and personal, within so much of the municipality so contracting as is embraced in the sewerage district bears to the total amount of taxable property, real and personal, within so much of all the municipalities so contracting as is embraced within the sewerage district, as returned and certified by the respective taxing boards and taxing officers of the municipalities for the year one thousand nine hundred and seven. For said purpose, all taxable property, real and personal, shall be assessed at its true value and each assessor, taxing board and taxing officer for the several municipalities so contracting shall examine, compute and determine, and certify to the commissioners on or before the first day of October, one thousand nine hundred and seven, the amount of taxable property, real and personal, assessed for the year one thousand nine hundred and seven to and upon persons and property within so much of the several municipalities so contracting as lie within the district. The books of each of said assessors, taxing boards and taxing officers shall at all times be open for examination to the commissioners and to the contracting municipalities, and their officers and agents, for the purpose of examining, checking and verifying said certificates.
In case any contracting municipality shall request sewage capacity in excess of what would be allotted to it for sewage, including ten per cent of factory waste, provision may be made in the contract for the enlargement of the sewer, plant and works, in order to accommodate and dispose of a larger quantity of factory waste, such increase in accommodation to be made at the expense of the municipality making requisition therefor.
The cost of maintenance, repair and operation of said sewer, plant and works shall, by the terms of the contract, be apportioned annually to the respective municipalities entering into the contract, according to the amount of sewage delivered or discharged by them respectively into any sewer or other receptacle provided or constructed by the commissioners for the reception of the same. Included in the cost of operation shall be an amount to compensate any municipality for the loss of real estate taxes which would be due otherwise on the land exempted from taxation for the location thereon of a sewer plant serving other municipalities. The annual lost real estate taxes shall be calculated by applying the general tax rate of the municipality to the assessed value of the lands so exempted. The assessed value of such exempt lands shall be determined by multiplying the number of acres and the average assessed value per acre of taxable lands contiguous to the exempt land. The moneys received by the commissioners for this purpose shall be paid annually by them to the municipality in which the sewer plant is located. Amended by L.1975, c. 254, s. 1, eff. Nov. 25, 1975; L.1979, c. 40, s. 1, eff. March 14, 1979.
Payments by municipalities to the commissioners pursuant to any contract entered into for the cost of maintenance, repair and operation of a sewer, plant or works constructed by the commissioners, shall be made in equal quarterly installments on February 1, May 1, August 1 and November 1 of each year. L.1982, c. 92, s. 1, eff. July 28, 1982.
The contract shall provide for the construction by the commissioners of an intercepting sewer or sewers, plant and works, reasonably sufficient in size and capacity to intercept and dispose of sewage and other polluting matter of the contracting municipalities for the present, and, so far as can be estimated and foreseen, for the future, and the sewer or sewers, plant and works may differ substantially in details from the preliminary maps, plans, specifications and estimates submitted to the municipalities as hereinbefore directed. The several contracting municipalities and the commissioners are hereby vested with absolute discretion in the determination of the size and capacity of each such intercepting sewer, plant and works. The contract shall also provide for the building, repair, operation, maintenance and cleaning of any such intercepting sewer, plant and works, and for the purchase of the necessary lands, rights in land and other property by the commissioners, and for the payment of the cost and expense thereof by the several contracting municipalities to the commissioners.
The total cost and expense of constructing said intercepting sewer, plant and works shall include the expenses of the commissioners incurred prior to March eighteenth, one thousand nine hundred and seven, and not otherwise provided for, not exceeding the sum of twenty-five thousand dollars, also the cost of preliminary maps, plans, specifications and estimates herein referred to, also the salary or other compensation of the commissioners up to the completion of such intercepting sewer, plant and works, together with all incidental expenses of maintaining their corporate organization and of clerical and engineering services, and the reasonable compensation of counsel which they are hereby authorized to employ.
The cost and expense of maintaining, repairing and operating said intercepting sewer, works and plant, shall include the salaries or other compensation of the commissioners, also charges for clerical and engineering services, compensation of counsel and incidental expenses of maintaining their corporate organization.
In all the contracts to be made between the municipalities and the commissioners pursuant to the terms of this chapter, the several municipalities so contracting shall undertake and agree, upon the request of the commissioners, to exercise and put in operation all their powers of eminent domain for the condemnation of lands, rights in lands and other property for the benefit of such joint enterprise, either within or outside the territory of such contracting municipalities.
Upon the making of the contract hereby authorized, the commissioners may, in their own corporate name, purchase and acquire all lands, and rights and interest in lands, either within or outside the territory of the joint contracting municipalities, which may be necessary for the construction of such intercepting sewer and its appurtenances, and for this purpose may condemn the same in the manner provided by the general laws of this state relating to the condemnation of lands for public use, and may construct, maintain and operate such intercepting sewer and its appurtenances, together with all works, machinery, appliances and other things requisite or useful for the purposes to be accomplished by the same.
The commissioners, in the execution of said works, may construct said intercepting sewer and the necessary appurtenances thereto to the point or points of discharge and disposal determined by the contract, and for this purpose may pass through or partly through territory situated within the bounds of any municipality, whether or not it is one of those contracting with it for the construction of said works, and they may construct any such intercepting sewer and its appurtenances along, under and over any watercourse, or under or over or along or across any street, turnpike, road, railroad, highway or other way, or public park or grounds, and in or upon private or public land under water, in such way and manner, however, as not unnecessarily to obstruct or impede travel or navigation, and may enter upon and dig up any street, highway or private or public land for the purpose of constructing said works and appurtenances and for repairing and maintaining the same, and in a general way may do all other acts and things necessary, convenient and proper in connection with the making and maintaining of the improvement contemplated by the provisions of this chapter. The highways dug up and disturbed shall be restored to their former condition as near as may be.
a. Whenever any work to be performed or any material to be furnished shall involve an expenditure of money exceeding the sum of $7,500.00 or, after June 30, 1985, the amount determined pursuant to subsection b. of this section, the commissioners shall designate the time when they will meet at their usual place of meeting to receive proposals in writing for doing the work and furnishing the material, and the commissioners shall order their clerk to give notice by advertisement, inserted in at least two newspapers printed and circulating, respectively, in two of the counties of the district, at least 10 days before the time of such meeting, of the work to be done and the material to be furnished, particular specifications of which they shall cause to be filed in their office at the time of such order. All proposals received shall be publicly opened by the commissioners or the chief administrative officer of the commission and the commissioners shall award the contract to the lowest responsible bidder. All contractors shall be required to give bond satisfactory in amount and security to the commissioners.
b. Commencing January 1, 1985, the Governor, in consultation with the Department of the Treasury, shall, no later than March 1 of each odd-numbered year, adjust the threshold amount set forth in subsection a. of this section, or subsequent to 1985, the threshold amount resulting from any adjustment under this subsection, in direct proportion to the rise or fall of the Consumer Price Index for all urban consumers in the New York City and Philadelphia areas, as reported by the United States Department of Labor. The Governor shall, no later than June 1 of each odd-numbered year, notify the commissioners about the adjustment. The adjustment shall become effective on July 1 of each odd-numbered year. c. Nothing in this act shall prohibit the commissioners from entering into a joint agreement pursuant to section 10 of P.L. 1971, c. 198 (C. 40A:11-10) for the purchase of work related to sewage sludge disposaL. All such agreements shall be entered into by resolution of the commissioners and shall be subject to the requirements of P.L. 1971, c. 198 (C. 40A:11-1 et seq.).
For the purpose of defraying the cost and expense of the construction of any such intercepting sewer, plant and works, and the appurtenances thereof, and of making the payments which shall be designated and required to be made by such joint contract, the governing body or board in charge of the finances of each contracting municipality may borrow the money necessary to make such payments upon the notes or other temporary obligations of such municipality, which notes or obligations may be renewed from time to time until permanent bonds shall have been issued by such municipality to take up and pay for the same. Each contracting municipality may, from time to time, issue its bonds for the purpose of raising money necessary to pay its notes or other temporary obligations, including interest, issued and outstanding for the purpose hereinbefore stated, or to make any of the payments required by said contract, which said bonds shall be in such amounts and bear interest at such rate, not exceeding six per cent per annum, and shall be payable at such time and place, as the governing body or board having charge of the finances of such municipality shall by resolution duly adopted determine. The total amount of indebtedness incurred and of bonds issued by any municipality under the authority of this chapter shall not exceed five per cent of the tax ratables within such municipality, as shown by its official books of the last assessment for taxes therein, but said indebtedness and bonds shall be held to be authorized in addition to the amount of indebtedness and bonds fixed by the charter or any general law as a limitation beyond which the municipality may not incur indebtedness or issue bonds, and said indebtedness and bonds authorized by this chapter shall not be taken to be included within or governed by any such limitation; nor shall the method of issuing bonds authorized by this chapter be governed or determined by any provisions of any other special or general law.
Upon the making of any such contract as is herein provided for, the commissioners may borrow upon their corporate notes, or other obligations, any moneys which may be required by them in the performance of said contract, and for the payment of moneys so borrowed, the contract with the several municipalities executing the same shall be security.
At any time after the making of a contract in accordance with the provisions of this chapter, the commissioners may, with the consent of each of the municipalities which have contracted with them, evidenced by resolution of the body or board having charge of its sewer system or authorized to construct sewers therein, enter into a contract with any municipality lying in whole or in part within the drainage area of the Passaic river between the Great falls at the city of Paterson and Newark bay, and including the boroughs of Totowa, West Paterson and North Haledon in Passaic county, for the following purposes: a. The use of said intercepting sewer and its appurtenances and for participation in the benefits and in the cost of the construction, operation and maintenance of the same. b. To permit any municipality already a party to the original contract to allot a portion of its capacity in said sewer to any other municipality within the drainage area for the purpose of providing an outlet for the sewage of such other municipality. The commissioners may, with like consent, enter into a contract with any person owning or occupying lands in said drainage area for the use of said intercepting sewer and appurtenances, and for participation in the benefits and in the cost of construction and maintenance of the same. All of said contracts shall be entered into by the commissioners upon such terms and conditions as may be agreed upon in any such contract, and any moneys paid in accordance with the terms of such further contract by such municipality or person may be used and applied by the commissioners to the cost of the completion of the intercepting sewer and appurtenances, or to the payment of the cost of the operation and maintenance of the same, or to the reduction of the amount which any contracting municipality may be called upon to pay to the commissioners by virtue of its said contract, as may be agreed upon in any such contract. Amended by L.1975, c. 18, s. 1, eff. Feb. 27, 1975.
Every municipality which shall have contracted with the commissioners under the authority of section 58:14-25 of this title shall have as full power to borrow money and make an issue of notes or other temporary obligations and bonds for the purpose of making the payments designated and required to be made under any such contract as is given by this chapter to the municipalities first entering into contract with the commissioners for the purpose of defraying the cost and expense of the construction of such intercepting sewer, plant and works, and the appurtenances thereof, and of making the payments designated and required to be made by and under such contracts.
Where any municipality party to the original contract has made an agreement to allot a portion of its capacity in said sewer to another municipality as provided by section 58:14-25 of this title, and such other municipality has a population of not less than five thousand nor more than ten thousand, the commissioners may enter into a contract with the latter municipality to pay its portion of the cost of operation and maintenance of said sewer, based on the amount of use thereof by the municipality. Upon the execution of such a contract, the municipality shall have the right to participate in the use and benefit of said sewer, but not in excess of the capacity allotted to it under said agreement, as provided for in said section 58:14-25, and the rights to the use and benefits of the sewer by the municipality making the allotment shall be decreased to the extent of the allotment so made. It shall not be necessary to have the consent of the municipalities that were parties to the original contract with the commissioners for the execution of such contract as is authorized by this section.
One or more of the municipalities which are parties to the contract with the commissioners, or to contracts supplementary thereto, as authorized by this chapter, may enter into a contract with any municipality or person, or any two or more of them, whether within or without the district, for the use of any reserve or unused sewer capacity owned by any such municipality in the intercepting sewer, plant and works constructed and operated by the commissioners, for the disposal of sewage or other polluting matter originating in the territory tributary to the Passaic river between the Great falls and Newark bay, either by a continuous or an intermittent flow to the extent and for so long only as such flow shall not interfere with the capacity of such sewer, plant or works belonging to such municipality, upon such annual rental or compensation for such use as may be agreed upon and the payment of the annual cost of maintenance, repair and operation upon the same basis as the municipalities who are parties to the contract with the commissioners or contracts supplementary thereto authorized by this chapter. A copy of any such contract shall be filed with the commissioners and approved by them before becoming operative. Any such contract as hereby authorized shall terminate and all rights thereunder shall cease upon one year's written notice given by either of the parties thereto or by the commissioners.
The commissioners shall prepare annually a statement showing the maximum sewage flows and sewer capacity requirements for each municipality participating in the use of said sewer, plant and works and determine the difference between the capacity allotments and the sewer capacity requirements for each municipality for the ensuing year, which shall be known as "reserve sewer capacity" .
The commissioners and the municipalities contracting with them for the construction and operation of an intercepting sewer and its appurtenances in accordance with the provisions of this chapter, may enter into further contract or contracts supplementary to or amendatory of any such existing contract, relating to any matter embodied in such existing contract.
Upon the completion of any such intercepting sewer, plant and works, and the appurtenances thereof, the commissioners shall retain and have the sole control and charge thereof, and every municipality using the same shall pay annually to the commissioners, on demand, its proportion of the cost of maintenance and operation thereof, as the same may be certified to it from time to time by the commissioners pursuant to the terms of said contract, which cost of maintenance and operation shall be raised and provided for by said municipalities by taxation, or by the issuance of temporary loan bonds in anticipation of taxation.
The state comptroller shall cause the accounts of the commissioners to be annually audited at the expense of the commissioners, and the result of such audit shall be printed with the financial report of the commissioners. The commissioners shall at all times keep full and accurate account of their receipts and expenditures and liabilities, and shall annually cause a detailed statement thereof to be published and a copy thereof mailed to the clerk of each of the contracting municipalities. The commissioners shall be liable for any unlawful act the same as members or officers of any public body.
Any municipality, corporation or individual injured by the discharge, directly or indirectly, of any sewage or other polluting matter into the waters of the Passaic river at any point between the limits in which such discharge is prohibited by this chapter may institute and prosecute in the name of the commissioners such suit or suits at law or in equity as may be necessary or appropriate to enforce the provisions of this chapter, the same as the commissioners could or might do, but nothing herein contained shall be construed to take from, deprive, or otherwise limit any right of action which any such municipality, corporation or individual might have in its or his own name to secure or obtain the abatement of, or damages for any injuries sustained as the result of, the discharge of sewage or polluting matter in violation of the provisions of this chapter. Whenever any prosecution shall be instituted under the provisions of this section, the name and address of the municipality, corporation or individual instituting or prosecuting the same shall be set forth in the pleadings therein.
The Passaic valley sewerage commissioners are hereby given the right, power and authority to lease unto any two or more municipalities in this state, organized in joint meeting, under the provisions of an act entitled "An act to authorize two or more municipalities in this state to jointly construct and maintain outlet or trunk sewers," approved March fifteenth, one thousand eight hundred and ninety-nine, and the supplements thereto and amendments thereof, or under the provisions of article 2 of chapter 63 of the title Municipalities and Counties (s. 40:63-68 et seq.), for such period of years as may be agreed upon, any portion of its lands deemed necessary by the contracting parties for the purpose of constructing and maintaining on and in such leased lands, pipe lines and sewage storage tanks with appurtenances, and to enter into any agreements concerning the same, upon such terms and conditions as may be agreed upon; and shall further have the right, power and authority to enter into a contract or contracts with such municipalities, organized in joint meeting as aforesaid, for the disposal of sludge by barge to sea or otherwise.
All moneys received by the commissioners pursuant to any such lease and contract or contracts shall be applied first to all costs and expenses in connection with said lease and contract or contracts, and the balance of the moneys, if any, shall be applied toward the payment of the cost of operation and maintenance of the intercepting sewer and appurtenances operated and maintained by the commissioners.
Certain terms as used in this act or any amendment of, or supplement to, this act, are defined as follows: "Intercepting sewer" means the "Passaic Valley intercepting sewer" together with its branches and appurtenances, as constructed, maintained and operated by the Passaic Valley Sewerage Commissioners. "Commissioners" means the "Passaic Valley Sewerage Commissioners." "Contracting agency" means any municipality entitled to the rights in and use of the intercepting sewer by virtue of contributions made by it to the commissioners toward the costs of the construction of the intercepting sewer, pursuant to the provisions of chapter 14 of Title 58 of the Revised Statutes (s. 58:14-1 et seq.), as amended, and the original and supplemental contracts between the commissioners and the various municipalities in the Passaic Valley Sewerage District. "Lessee" means any municipality, governmental agency, person, firm or corporation, entering into a lease agreement under the provisions of this act. "District" means the "Passaic Valley Sewerage District" as defined in section 58:14-1 of the Revised Statutes and chapter 151 of the laws of 1942. "Sewage" means sanitary sewage, trade wastes, storm waters and any other liquids and substances which customarily and regularly flow through sewers. L.1943, c. 76, p. 289, s. 1. Amended by L.1962, c. 31, s. 1.
At any time hereafter, the commissioners may enter into a lease with any municipality, governmental agency, person, firm or corporation, for the use of the intercepting sewer for the disposal of additional sewage originating from a drainage area of the Passaic river below the Great Falls in the city of Paterson. L.1943, c. 76, p. 290, s. 2.
Before entering into any such lease, the commissioners shall determine that the intercepting sewer has sufficient capacity at the proposed point of intake of such additional sewage and at all other points of the intercepting sewer, after taking into consideration the estimated rate of flow and hours of discharge of such additional sewage, without preventing or interfering with the actual use being made of said intercepting sewer by any contracting agency therein or lessee. The commissioners shall hold a public hearing at which time opportunity shall be afforded the contracting agencies and all interested parties to present objections and suggestions with reference to the proposed lease, and if it shall appear that contracting agencies representing more than seventy-five per centum (75%) of allotted capacity in said intercepting sewer, object to said lease, the commissioners shall not enter into it. Notice of said public hearing, with all relative information and data, shall be mailed to each contracting agency, at least twenty days before the date set for the hearing. L.1943, c. 76, p. 290, s. 3.
The said lease shall provide as follows: that (a) the lessee shall bear his proportionate share of the annual cost of maintenance, repairs and operation of the intercepting sewer in the same manner and on the same terms as the contracting agencies; (b) the lessee shall, in addition, pay to the commissioners, an annual rental at the rate of twenty-five hundred dollars ($2,500.00) per million gallons of average daily flow or discharge received into the intercepting sewer as a result of said lease; said annual rental to be not less than fifteen hundred dollars ($1,500.00); (c) the lease shall terminate on December thirty-first of the year in which made and thenceforth renew itself annually for calendar year periods, unless either party shall give six months' notice prior to the renewal date of his or its intention not to renew; (d) the flow or discharge to be received under such lease shall be received during prescribed hours of the day or night and at a prescribed rate of flow per minute and per day with a right or privilege in the commissioners to vary such prescribed hours or rates of flow at any time during the term of the lease or any of its renewals; (e) the lessee shall at all times be subject to the rules and regulations of the commissioners governing the use of said intercepting sewer, and the lessee shall not discharge or permit to be discharged into the intercepting sewer any substances or liquids containing oils, gasoline or any explosive or inflammable materials, or acids or other substances or liquids which alone or in combination with other substances or liquids in the sewer, may or might, directly or indirectly, cause or threaten or tend to cause, injury to the sewer structures or to the life and health of persons. Such prohibited substances or liquids shall also include live steam and excessively hot liquids, as well as any other substances or liquids which directly or indirectly, alone or in combination with other liquids or substances, may or might generate or tend to generate explosive or dangerous gases; (f) the flow or discharge to be received under a lease shall be metered by an approved measuring device or meter, to be approved by the commissioners, but to be erected by and at the sole expense of the lessee. Said measuring device or meter, however, shall be under the exclusive control of the commissioners; all expenditures for installations and connections made necessary by the lease, including the construction of a shut-off or closing valve under the control of the commissioners shall be borne by the lessee and said lessee shall be required to maintain in a good state of repair and operation, such measuring device, meter, installations and connections at its own costs and expenses; provided, that the lessee shall not be required to bear the expense of reading the meter or the general expense of maintaining, repairing and operating the intercepting sewer except as above provided; (g) the commissioners and the contracting agencies shall not be responsible in damages for any stoppage in the flow or discharge received under the terms of the lease; (h) where the lessee shall find it necessary in order to connect up with the intercepting sewer to construct lines over the property or through the streets or make use of the sewer lines, of any municipality, or of any individual, firm or private corporation, then said lessee shall be obligated to make such arrangements or contracts with said parties as may be necessary, as a condition to the making of the lease with the commissioners; (i) the lessee shall conform to such other conditions, terms, requirements and safeguards as the commissioners may deem necessary and provide for in said lease; (j) for breach in any of the provisions of the lease, the commissioners may give notice to the lessee and, unless such breach is corrected, the commissioners may forthwith terminate the lease. L.1943, c. 76, p. 291, s. 4.
The said annual rentals, exclusive of charges for maintenance, repairs and operations, paid by such lessees for the use of the intercepting sewer for any calendar year or portion of the same, shall be distributed proportionately among the contracting agencies according to their unused capacity in the intercepting sewer for such year. L.1943, c. 76, p. 293, s. 5.
Nothing herein contained shall be construed to limit or abridge the right of any contracting agency to make use of the intercepting sewer to the full extent of its allotted capacity, and if it shall appear that the actual use of such intercepting sewer by any contracting agency is being or probably will be impaired, lessened or destroyed, then the commissioners shall take action to curtail or bring to an end the use of said intercepting sewer by any lessee whose use of the same is, in actual operation, impairing, lessening or destroying or tending to impair, lessen or destroy the actual use of the intercepting sewer by such contracting agency. L.1943, c. 76, p. 293, s. 6.
Whenever any contracting agency is using said intercepting sewer in excess of its allotted capacity, the commissioners may, in addition to the right to restrain such excess use, by application to the court having jurisdiction over the same, in their judgment, permit such excess use whenever they ascertain and determine that such excess use will not interfere with the use of said intercepting sewer to the extent of its allotted capacity by any other contracting agency, and that the capacity of said intercepting sewer is sufficient to carry such excess, permit such contracting agency to continue to use said intercepting sewer for such excess and charge the municipality using such excess at an annual rental at the rate of fifteen hundred dollars ($1,500.00) annually per million gallons of average daily flow, in addition to its proportionate share of the annual costs of maintenance, repairs and operation of the intercepting sewer with respect to its total discharge of sewage into such intercepting sewer. The said rental collected by the commissioners shall be disbursed by the commissioners to the contracting agencies in the same manner as provided herein for the disbursement and distribution of the rentals arising from leases between the commissioners and lessees. L.1943, c. 76, p. 293, s. 7.
All acts and parts of acts inconsistent with the provisions of this act be and the same are hereby repealed. L.1943, c. 76, p. 294, s. 8.
Notwithstanding the restrictions and limitations prescribed by the act to which this act is a supplement, the commissioners may enter into a lease with a lessee at such minimum annual rental and with such other terms as to the flow and discharge to be received and the computation of the quantities thereof as may be approved by the commissioners; provided, such lessee shall be a municipality, or a sewer district created under the provisions of section 40:63-32 of the Revised Statutes, which for more than ten years past shall have had a contract or arrangement with a contracting agency for the discharge of sewage into the intercepting sewer of not more than one hundred thousand gallons average daily flow. L.1944, c. 214, p. 752, s. 1.
It has been ascertained by the Legislature of the State of New Jersey and is hereby declared: (a) that there is imperative need for repair, replacement and improvement of the sewerage system (hereinafter defined) operated by the commissioners (hereinafter defined), including particularly immediate enlargement and betterment of the sewage treatment and disposal works thereof; (b) that the existence of such need threatens the waters of the Passaic river and Newark bay with pollution, and failure or delay in meeting such need will jeopardize the health, safety and welfare of residents of the State and impair property and other economic values and, by reason of discharge of effluent from the sewerage system in waters of New York bay, will harm the relations of the State with other States and with public health agencies; (c) that such need arises principally from the long, continuous and heavy use made and being made of the sewerage system since its operation began in one thousand nine hundred and twenty-four, the impracticability during such use of making on an annual or any other periodic basis the alterations and improvements required in order to provide for the increase of population and the rise in acceptable standards for sewage treatment and disposal, and the damage, wear and tear, depreciation and obsolescence incident to such use; (d) that the expense of meeting such need and providing such repair, replacement and improvement, together with any amortization or interest charges in connection with such expense, is in substance and effect part of the cost of maintenance, repair and operation of the sewerage system; (e) that the provisions of the statutes and of contracts made or to be made pursuant thereto whereby the contracting municipalities (hereinafter defined) or the commissioners could raise funds to meet such expense in the amounts required are not sufficiently flexible and are impracticable, and application thereof would result in oppressive or inequitable taxation to meet such expense; and (f) that it is necessary, as in this act provided, to afford a practical means of relief in the premises and to permit and require the contracting municipalities as users of the sewerage system to meet and pay the expense of meeting such need on an economical and reasonable basis over a reasonable number of years. L.1953, c. 388, p. 2008, s. 1.
As used in this act, unless a different meaning clearly appears from the context:
(a) "Original act" shall mean chapter 14 of Title 58 of the Revised Statutes (section 58:14-1, et seq.) and the acts continued thereby and the acts heretofore adopted amendatory thereof or supplemental thereto;
(b) "Commissioners" shall mean the Passaic Valley Sewerage Commissioners, the body politic and corporate of the State of New Jersey appointed, organized, created and existing pursuant to the original act;
(c) "Sewerage system" shall mean the Passaic Valley intercepting sewer together with its branches and appurtenances and all plants, structures and other real and tangible personal property acquired, constructed or operated by the commissioners and such other plants, structures and other real and tangible personal property as may be acquired or constructed by the commissioners pursuant to this act;
(d) "Municipality" shall mean any city of any class, any borough, village, town, township, or any other municipality other than a county or a school district;
(e) "Contracting municipality" shall mean any municipality entitled to rights in and use of the sewerage system by virtue of contributions heretofore made by it to the commissioners toward the costs of construction of the sewerage system pursuant to the provisions of the original act and any contract heretofore made between the commissioners and one or more municipalities with respect to such construction and contributions;
(f) "Governing body" shall mean the commission, council, board or body, by whatever name it may be known, having charge of the finances of a municipality;
(g) "Project" shall mean any or all sewers, conduits, pipe lines, mains, pumping and ventilating stations, sewage or other water-borne waste treatment or disposal systems, plants, works or apparatus, connections or outfalls deemed by the commissioners to be necessary or desirable as part of the sewerage system, including equipment or appurtenances thereof and any real or tangible personal property necessary or desirable therefor and including also all improvements necessary to relieve or prevent pollution of the Passaic river and Newark bay;
(h) "Bonds" shall mean bonds or other obligations of the commissioners issued pursuant to this act; and
(i) "System revenues" shall mean the moneys paid or required to be paid by any contracting municipality or any other user of the sewerage system to the commissioners on account of the cost of maintenance, repair and operation of the sewerage system.
For the purpose of carrying out any of said projects the commissioners shall have the power, in addition to the powers granted by the original act, to own, maintain, repair, reconstruct, operate and use the sewerage system and, to that end, to acquire, by purchase, gift, condemnation or otherwise, and, to construct, maintain, repair, reconstruct, operate and use all plants, structures, equipment and facilities, and other real and personal property, deemed necessary for, or incident to, any of said projects; and for said purpose only the commissioners may enter into any contracts, execute all instruments, and do all things necessary or convenient to carry out any power expressly given in this act. L.1953, c. 388, p. 2011, s. 3.
The commissioners shall be or continue to be a public body politic and corporate established as an instrumentality exercising public and essential governmental functions to provide for the public health and welfare and shall have the power, in its own name and on its own behalf, to acquire, hold, use and dispose of its system revenues and other moneys, and to provide for and secure the payment of any bonds and the rights of the holders thereof. L.1953, c. 388, p. 2011, s. 4.
(a) For the purpose of raising funds to pay the cost of any of the projects, as defined in section 1 of this act, or any part of said projects, the commissioners shall have power from time to time to authorize and provide for the issuance of its bonds pursuant to this act. Such bonds shall be authorized by and be issued pursuant to a resolution or resolutions (in this act sometimes referred to as "bond resolution" ) of the commissioners which shall (1) describe the project or projects in brief and general terms sufficient for reasonable identification, and (2) state the amount of bonds authorized thereby for or with respect to said project or projects. There shall be included in such cost of such project or projects such amounts as the commissioners shall deem necessary or advisable to provide for the cost of issuance of bonds and of financial, legal and accounting services and advice, for discount on bonds, for engineering, inspection and professional costs, and for all such other expenses as may be necessary and incident to the financing, acquisition, construction and completion of such project or projects and the placing of the same in operation, and also such provision or reserves for working capital, operating, maintenance or replacement expenses, or payment or security of principal of or interest on any bonds or notes of the commissioners during or after such financing, acquisition, construction and completion as the commissioners may determine to be necessary or advisable. (b) After adoption of a bond resolution, the commissioners shall (1) cause copy thereof, certified by its secretary, and a notice of the date, time and place of the hearing hereinafter mentioned to be mailed to the governing body of each contracting municipality; (2) cause such notice to be published at least once in a newspaper of general circulation published in the city of Newark, New Jersey; and (3) not sooner than 30 days after such publication and after such mailing, hold a public hearing in the Passaic Valley Sewerage District on said bond resolution at which any contracting municipality may appear in person or by agent or attorney and be heard with respect thereto. Said bond resolution shall take effect on the thirtieth day after the conclusion of such public hearing unless prior to such thirtieth day the governing bodies of contracting municipalities shall have caused to be filed with the secretary of the commissioners copies, certified by their respective clerks of resolutions adopted by such governing bodies respectively objecting to said bond resolution and it shall appear that the contracting municipalities on behalf of which such objecting resolutions were adopted paid 25% or more of the total amount of moneys received by the commissioners, exclusive of moneys received because of lease arrangements or because of surcharges or default payments, from contracting municipalities during the calendar year ending on the last day of December next preceding the date of such public hearing. (c) Upon the taking effect of a bond resolution, the commissioners shall have power to incur indebtedness, borrow money and issue its bonds for the purpose or respective purposes described therein. Such bonds shall be authorized by the bond resolution and may be issued in one or more series and shall bear such date or dates, mature at such time or times not exceeding 40 years from the date thereof, bear interest at such rate or rates and payable at such times, be in such denomination or denominations, be in such form either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable from such sources in such medium of payment at such place or places within or without the State, and be subject to such terms of redemption (with or without premium) as the bond resolution may provide or as may be determined by the commissioners in such other manner as the bond resolution may authorize. (d) Bonds of the commissioners shall be sold by the commissioners at public sale not less than 6 nor more than 40 days after notice of such sale has been published at least once in a newspaper published in the city of Newark and in a financial newspaper published and circulating in New York City, which shall state the terms of sale as determined by the commissioners. The bonds of each issue sold by the commissioners shall be offered at such public sale by the commissioners on the basis of the interest cost to maturity of the money received for such issue (computed according to standard tables of bond values) and at such public sale, unless all proposals for the bonds are rejected, shall be awarded upon the proposal offering the lowest such interest cost. (e) After adoption of a bond resolution, the commissioners, in anticipation of the issuance of bonds, shall have power to incur indebtedness, borrow money and issue negotiable notes. Any such note shall be designated "bond anticipation note" and shall contain a recital that it is issued in anticipation of the issuance of bonds. Such notes may be issued for a period of not exceeding 1 year and may be renewed from time to time for periods of not exceeding 1 year, but all such notes, including renewals thereof, shall mature and be paid not more than 5 years from the date of the original notes. Such notes may be sold at public or private sale, bear interest at such rate or rates, be in such denomination or denominations, be in such form, have such rank or priority, be executed in such manner, and be payable at such place or places within or without the State as a resolution of the commissioners may provide. Bond anticipation notes may be sold at private sale pursuant to resolution of the commissioners, or by its treasurer expressly designated by resolution to sell such notes. The treasurer making any such sale shall report in writing to the commissioners at the next meeting thereof as to the principal amount, interest rate, and maturities of the notes sold, the price obtained and the name of the purchaser. L.1953, c. 388, p. 2011, s. 5. Amended by L.1969, c. 235, s. 1, eff. Dec. 17, 1969; L.1971, c. 141, s. 2, eff. May 12, 1971.
After the taking effect of a bond resolution, the commissioners may cause to be published in a newspaper of general circulation published in the city of Newark the title of said bond resolution together with a notice stating the date of its adoption and also the date of the first publication of such notice and also that any action or proceeding of any kind or nature in any court questioning the validity of the creation and establishment of the commissioners, or the validity or proper authorization of the bonds provided for by said bond resolution, or the validity of this act or of any obligations, covenants, agreements or contracts provided for by this act or said bond resolution shall be commenced within twenty days after the first publication of such notice. If no such action or proceeding shall be commenced or instituted within twenty days after the first publication of such notice, then all contracting municipalities and residents and taxpayers and owners of property therein and all other persons whatsoever shall be forever barred and foreclosed from instituting or commencing any action or proceeding in any court, and from pleading in any action or proceeding any defense, questioning the validity of the creation and establishment of the commissioners, the validity or proper authorization of such bonds, or the validity of this act or of any such obligations, covenants, agreements or contracts, and all such bonds, obligations, covenants, agreements and contracts shall be conclusively deemed to be valid and binding obligations in accordance with their terms and tenor. L.1953, c. 388, p. 2013, s. 6.
Any provision of any law to the contrary notwithstanding, any bond or other obligation issued pursuant to this act shall be fully negotiable within the meaning and for all purposes of the uniform commercial code of the State, and each holder or owner of such a bond or other obligation, or of any coupon appurtenant thereto, by accepting such bond or coupon shall be conclusively deemed to have agreed that such bond, obligation or coupon is and shall be fully negotiable within the meaning and for all purposes of said uniform commercial code. L.1953, c. 388, p. 2014, s. 7. Amended by L.1971, c. 141 s. 3, eff. May 12, 1971.
Any bond resolution of the commissioners authorizing the issuance of any bonds may contain provisions, which regardless of the time of issuance thereof shall be a part of the contract with the holders thereof, as to: (a) the custody, security, use expenditure or application of the proceeds of the bonds; (b) payment of the principal of or interest on the bonds, or any other obligations, and the sources and methods thereof, the rank or priority of any such bonds or obligations as to any lien or security; (c) the use and disposition of any moneys of the commissioners; (d) pledging, setting aside, depositing or trusteeing all or any part of the system revenues or other moneys or any contracts of the commissioners to secure the payment of the principal of or interest on the bonds or any other obligations, or the payment of expenses of operation or maintenance of the sewerage system, and the powers and duties of any trustee with regard thereto; (e) the setting aside out of the system revenues or other moneys of the commissioners of reserves and sinking funds, and the source, custody, security, regulation, application and disposition thereof; (f) System revenues and the rents, rates, fees, or other charges for connection with or the use or services of the sewerage system; (g) vesting in a trustee or trustees such property, rights, powers and duties in trust as the commissioners may determine which may include any or all of the rights, powers and duties of the trustee appointed by the holders of bonds pursuant to section ten of this act, and limiting or abrogating the right of such holders to appoint a trustee pursuant to section ten of this act or limiting the rights, duties and powers of such trustee; (h) payment of costs or expenses incident to the enforcement of the bonds or of the provisions of the bond resolution or of any covenant or contract with the holders of the bonds; (i) the procedure, if any, by which the terms of any covenant or contract with, or duty to, the holders of bonds may be amended or abrogated, the amount of bonds the holders of which must consent thereto, and the manner in which such consent may be given or evidenced. L.1953, c. 388, p. 2014, s. 8.
(a) The provisions of this section shall be applicable to a series of bonds authorized or issued under this act only if the bond resolution of the commissioners authorizing or providing for the issuance of such bonds, or an amendment thereof, shall provide in substance that the holders of the bonds of such series shall be entitled to the benefits, and be subject to the provisions of this section. (b) In the event that there shall be a default in the payment of principal of or interest on any bonds of such series after the same shall become due, whether at maturity or upon call for redemption, and such default shall continue for a period of thirty days, or in the event that the commissioners shall fail or refuse to comply with the provisions of this act or shall fail or refuse to carry out and perform the terms of any contract with the holders of any of such bonds, and such failure or refusal shall continue for a period of ninety days after written notice to the commissioners of its existence and nature, the holders of twenty-five per centum (25%) in aggregate principal amount of the bonds of such series then outstanding by instrument or instruments filed in the office of the Secretary of State and proved or acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of the bonds of such series for the purposes provided in this section. (c) Such trustee may and upon written request of the holders of twenty-five per centum (25%) in aggregate principal amount of the bonds of such series then outstanding shall, in his or its own name: (1) By action, suit or proceeding in the nature of mandamus, injunction, certiorari or otherwise, enforce all rights of the holders of such bonds, including the right to require the commissioners to charge and collect system revenues and other charges adequate to carry out any contract as to, or pledge of, such moneys, and to require the commissioners to carry out and perform the terms of any contract with the holders of such bonds or its duties under this act; (2) Bring action upon all or any part of such bonds or interest coupons or claims appurtenant thereto; (3) By action, suit or other proceeding, as if in equity, require the commissioners to account as if it were the trustee of an express trust for the holders of such bonds; (4) By action, suit or other proceeding, as if in equity, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such bonds. (d) Such trustee shall, in addition to the foregoing, have and possess all of the powers necessary or appropriate for the exercise of the functions specifically set forth herein or incident to the general representation of the holders of bonds of such series in the enforcement and protection of their rights. (e) In any action, suit or other proceeding by such trustee, the fees, counsel fees and expenses of the trustee shall constitute taxable costs and disbursements, and all costs and disbursements, allowed by the court, shall be a first charge upon any system revenues of the commissioners pledged for the payment or security of bonds of such series. L.1953, c. 388, p. 2016, s. 9.
Neither the members of the commission nor any person executing bonds issued pursuant to this act shall be liable personally on the bonds by reason of the issuance thereof. Bonds or other obligations issued pursuant to this act shall not be in any way a debt or liability of the State or of any county or municipality and shall not create or constitute any indebtedness, liability or obligation of the State or of any such county or municipality, either legal, moral or otherwise, and nothing in this act contained shall be construed to authorize the commissioners to incur any indebtedness on behalf of or in any way to obligate the State or any county or municipality. L.1953, c. 388, p. 2017, s. 10.
Neither the commissioners nor any municipality shall have power to mortgage, pledge, encumber or otherwise dispose of any part of the sewerage system, except that the commissioners may dispose of such part or parts thereof as may be no longer necessary for the purposes of the commissioners. The provisions of this section shall be deemed to constitute a part of the contract with the holder of any bonds. All property of the commissioners shall be exempt from levy and sale by virtue of an execution and no execution or other judicial process shall issue against the same nor shall any judgment against the commissioners be a charge or lien upon its property; provided, however, that nothing herein contained shall apply to or limit the rights of the holder of any bonds to pursue any remedy for the enforcement of any pledge or lien given by the commissioners on its system revenues or other moneys. L.1953, c. 388, p. 2021, s. 12.
Notwithstanding any restriction contained in any other law, the State and all public officers, municipalities, counties, political subdivisions and public bodies, and agencies thereof, all banks, bankers, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations and other persons carrying on an insurance business, and all executors, administrators, guardians, trustees and other fiduciaries, may legally invest any sinking funds, moneys or other funds belonging to them or within their control in any bonds, and such bonds shall be authorized security for any and all public deposits. L.1953, c. 388, p. 2021, s. 13.
The sewerage system and all other property of the commissioners are hereby declared to be public property of a political subdivision of the State and devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any subdivision thereof. All bonds are hereby declared to be issued by a political subdivision of this State and for an essential public and governmental purpose and to be a public instrumentality and such bonds, and the interest thereon and the income therefrom, and all funds, income, system revenues and other moneys pledged or available to pay or secure the payment of such bonds, or interest thereon, shall at all times be exempt from taxation except for estate and transfer inheritance taxes and taxes on transfers by or in contemplation of death. L.1953, c. 388, p. 2022, s. 14.
The State of New Jersey does hereby pledge to and covenant and agree with the holders of any bonds that the State will not limit or alter the rights hereby vested in the commissioners to acquire, construct, maintain, reconstruct and operate the sewerage system and to fulfill the terms of any agreement made with the holders of such bonds or other obligations, and will not in any way impair the rights or remedies of such holders, and will not modify in any way the exemptions from taxation provided for in this act, until the bonds, together with interest thereon, with interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceeding by or on behalf of such holders, are fully met and discharged; provided that such pledge to and covenant and agreement with the holders of any bonds issued on or after January 1, 1971 does not prohibit authorization hereafter for the commissioners, notwithstanding any other provision of this act or of the original act or acts amendatory thereof or supplemental thereto, to apportion the cost and expense of maintenance, repair and operation of the sewerage system (as in section 11 hereof referred to and described) among the contracting municipalities and other users thereof, upon any basis or bases in addition to or other than the proportion of the amount of sewage by them delivered and discharged into the sewerage system. L.1953, c. 388, p. 2022, s. 15. Amended by L.1971, c. 141, s. 5, eff. May 12, 1971.
The powers granted and duties imposed by this act are cumulative and are granted or imposed in addition to and not in substitution for existing powers or duties of the commissioners or any municipality, and are not subject to any limitation or restriction prescribed by any other laws. L.1953, c. 388, p. 2023, s. 16.
If any section, subsection, clause or provision of this act shall be adjudged unconstitutional or to be ineffective in whole or in part, to the extent that it is not adjudged unconstitutional or is not ineffective it shall be valid and effective and no other section, subsection, clause or provision of this act shall on account thereof be deemed invalid or ineffective, and the inapplicability or invalidity of any section, subsection, clause or provisions of this act in any one or more instances or under any one or more circumstances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance or under any other circumstance. L.1953, c. 388, p. 2023, s. 17.
At any time hereafter the commissioners may enter into an agreement with any contracting agency solely for the use of the commissioners' pumping station and treatment facilities for the disposal of sewage originating from within the municipal boundaries of the contracting agency. No sewage presently being discharged into the commissioners' system may be received under these sections. L.1962, c. 31, s. 2.
Before entering into any such agreement the commissioners shall hold a public hearing at which time opportunity shall be afforded the remaining contracting agencies to present objections and suggestions with reference to the proposed agreement, and if it shall appear that the contracting agencies, representing more than 75% of the remaining allowed capacity in the commissioners' facilities, object to said agreement, the commissioners shall not enter into it. Notice of said public hearing with the relative information and data shall be mailed to each contracting agency at least 20 days before the date set for the hearing. L.1962, c. 31, s. 3.
The said agreement shall provide as follows:
A. The contracting agency entering into said agreement shall pay to the commissioners for this sewage at a rate which shall be a specified percentage, but in no event less than 75%, of the rate which all contracting agencies pay for the use of the commissioners' facilities including the intercepting sewer.
B. The agreement shall commence upon signing and shall terminate on December 31, of an agreed upon year, but not later than 25 years after the date of entry, after which time the said agreement shall renew itself annually for calendar year periods, unless either party shall give 6 months notice prior to the renewal date of its intention not to renew.
C. The involved contracting agency shall at all times be subject to the rules and regulations of the commissioners governing the use of said intercepting sewer, and the involved contracting agency shall not discharge or permit to be discharged into the commissioners' facilities any substances or liquids containing oils, gasoline or any explosive or inflammable materials, or acids or other substances or liquids which alone or in combination with other substances or liquids in the sewer, may or might, directly or indirectly, cause or threaten or tend to cause, injury to the sewer structures or to the life and health of persons. Such prohibited substances or liquids shall also include live steam and excessively hot liquids, as well as any other substances or liquids which directly or indirectly, alone or in combination with other liquids or substances, may or might generate or tend to generate explosive or dangerous gases;
D. The flow or discharge to be received under an agreement shall be metered by an approved measuring device or meter, to be approved by the commissioners, but to be erected by and at the sole expense of the involved contracting agency. Said measuring device or meter, however, shall be under the conclusive control of the commissioners; all expenditures for installations and connections made necessary by the agreement, including the construction of a shut-off or closing valve under the control of the commissioners shall be borne by the involved contracting agency and said involved contracting agency shall be required to maintain in a good state of repair and operation, such measuring device, meter, installations and connections at its own costs and expenses; provided, that the involved contracting agency shall not be required to bear the expense of reading the meter or the general expense of maintaining, repairing and operating the commissioners' facilities except as above provided;
E. The commissioners and the contracting agencies shall not be responsible in damages for any stoppage in the flow or discharge received under the terms of the agreement;
F. Where the involved contracting agency shall find it necessary in order to connect up with the commissioners' facilities to construct lines over the property or through the streets or make use of the sewer lines, of any municipality, or of any individual, firm or private corporation, then said involved contracting agency shall be obligated to make such arrangements or contracts with said parties as may be necessary, as a condition to the making of the agreement with the commissioners;
G. The involved contracting agency shall conform to such other conditions, terms, requirements and safeguards as the commissioners may deem necessary and provide for in said agreement;
H. For breach in any of the provisions of the agreement, the commissioners may give notice to the involved contracting agency and, unless such breach is corrected, the commissioners may forthwith terminate the agreement.
No contracting agency shall be permitted to enter into any agreement for the discharge of a quantity of sewage, which, in addition to any other sewage discharged to the commissioners' facilities, shall exceed its allotted capacity. In no event shall the peak flow under this agreement exceed twice the capacity permitted hereunder. L.1962, c. 31, s. 5.
The commissioners shall have the power to adopt rules and regulations in conformity with requirements imposed by the federal government as a condition of federal assistance, which shall be binding upon all contracting municipalities and lessees delivering or discharging sewage into the system of the commissioners. Such rules and regulations may include pretreatment requirements, requirements for the adoption of sewer use ordinances and of user charge and industrial cost recovery systems in accordance with applicable federal statutes and the implementing regulations promulgated by the U.S. Environmental Protection Agency, and requirements concerning infiltration-inflow, as well as such other rules and regulations as the commissioners may deem to be necessary or proper for the operation of the system or to apply for and receive financial assistance from the federal government or any agency thereof for the construction, acquisition or rehabilitation of waste treatment works as part of the system, and to enter any agreement with the federal government for the purpose of obtaining such financial assistance. Any person who violates any provision of any rule or regulation adopted by the commissioners pursuant to this section shall be subject to a civil penalty of up to $50,000.00 per day for each violation, and each day's continuance of the violation shall constitute a separate violation. Penalties imposed under this section may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The commissioners may institute a civil action in the Superior Court for injunctive relief to prevent or restrain any act or activity which adversely affects or threatens to adversely affect public health or safety or the operation of the system. L.1976, c.125, s.1; amended 1989,c.237,s.1.
b. For units previously connected to the sewerage system that were demolished or refurbished to allow for new affordable housing units and for which a connection fee was previously paid, the commissioners shall establish within its leases, contracts, rates or schedules, as appropriate, a credit against the connection fee or tapping fee to be assessed for connection with the sewerage system to public housing authorities and non-profit organizations building affordable housing projects. The credit shall be the connection fee or tapping fee previously assessed and paid for connection with the sewerage system for units previously connected to the sewerage system.
c. The connection fee or tapping fee assessable against a public housing authority or non-profit organization, for units previously connected to the sewerage system that were demolished or refurbished to allow for new affordable housing units, shall be the lesser of the reduced rate provided for in subsection a. of this section, or the current non-reduced rate applicable to other types of housing developments minus the credit provided under subsection b. of this section for units for which a connection fee or tapping fee was previously paid, provided that said public housing authority or non-profit organization can establish that the connection fee or tapping fee was previously assessed and paid for connection with the system. If the same cannot be established, the reduced rate provided for in subsection a. of this section shall be assessed.
a. offer the customer the ability to receive or access, in electronic format, any periodic bill for service sent by such commissioners to their customers and any additional information sent by the commissioners to their customers as required by law, provided that any notice of disconnection, discontinuance or termination of water service shall be sent to a customer in written form at the customer's legal mailing address in addition to being sent or being made available in electronic format; and
b. provide the customer the option of paying any such periodic bill of the commissioners via electronic means.
a. This act shall be known and may be cited as the "State Flood Control Facilities Act." b. It is hereby declared that the State deems it advisable to participate in a program of flood control in the State of New Jersey in the manner hereinafter described. L.1948, c. 351, p. 1409, s. 1. Amended by L.1979, c. 358, s. 2, eff. Jan. 31, 1980.
The State Treasurer is hereby authorized to receive from the Federal Government any moneys which the Federal Government shall offer to the State of New Jersey for reimbursement for expenditures or otherwise in connection with any Federal flood control project in the State of New Jersey. The treasurer is also authorized to receive from any county or municipality of the State reimbursement for expenditures made by the State in the first instance for flood control projects, the cost of which expenditures is to be borne by the counties or municipalities of the State as hereinafter described. The treasurer is authorized, upon the receipt of any allotment of moneys from the Federal Government for reimbursement of expenditures or otherwise in connection with a flood control project and upon the receipt of any money from a county or municipality of the State in connection with a flood control project, to deposit such moneys to the credit of the general fund. L.1948, c. 351, p. 1409, s. 2.
The Commissioner of Environmental Protection is authorized to plan, acquire, construct and operate flood control facilities upon concluding that the public safety, health and welfare can best be assured by the acquisition or construction of such a facility and that the flood control facility will contribute to the overall management of the surface water of the river basin or subbasin to be affected by such a facility. The commissioner may construct any such facility either separately or in conjunction with the Federal Government or with any municipality, county or any agency or instrumentality of any of the above. L.1979, c. 358, s. 3, eff. Jan. 31, 1980.
The Commissioner of Environmental Protection is hereby authorized and directed for and in behalf of the State to carry out the State's participation in a Federal program of flood control, if and when such program shall be authorized by law, to sign all necessary agreements, and to do and perform all necessary acts in connection therewith to consummate the intent and purpose running with the approval by the Federal Government of flood control projects in the State of New Jersey and the allotment of moneys for such projects, if, as and when made by the Federal Government. He is authorized and empowered, notwithstanding any other law of this State, to carry out the provisions of this act and to perform and do such other and further acts not hereby specifically provided in this act as may be necessary to carry out the projects herein authorized and so as to conform with the act and the rules, regulations and requirements of the Federal Government made to govern the expenditures. Work, except work which shall be done under and pursuant to section 7 of this act, may be carried out by contract or by department forces or by a combination of these two methods. However, if the commissioner deems it to be in the interest of the public, he may agree with a local government affected by such work, to have its contractor or its forces and equipment perform such work, upon such terms as the commissioner may deem advantageous to the State. The commissioner shall exercise his powers and duties with respect to the said flood control projects in a manner that will comply with any Act of Congress applicable thereto and any rules and regulations made and promulgated by virtue thereof. L.1948, c. 351, p. 1411, s. 5. Amended by L.1979, c. 358, s. 4, eff. Jan. 31, 1980.
The commissioner shall carry out the relocation and reconstruction of streets, sidewalks, public grounds, parks, cemeteries, water supply systems, sewer systems and lighting systems of municipal corporations, county roads, and town and township highways made necessary by the construction of State flood control projects. The total cost of such relocation and reconstruction for a flood control project shall be paid by the State. L.1948, c. 351, p. 1412, s. 6. Amended by L.1979, c. 358, s. 5, eff. Jan. 31, 1980.
The governing body of any municipality or county or any agency or instrumentality thereof may participate with the State of New Jersey in a program of flood control and, in such case, the cost to be borne by the local government shall be determined in written agreement executed between the commissioner and the local government. The money so required shall be paid by the State to such local government or by such local government to the State and, in the latter case, shall be raised by tax or pursuant to the local finance law, or in accordance with any local charter or law, as the case may be. All such funds receivable by the State shall be deposited with the State Treasurer and shall be payable on the audit and warrant of the Treasurer on vouchers approved by the commissioner. L.1948, c. 351, p. 412, s. 7. Amended by L.1979, c. 358, s. 6, eff. Jan. 31, 1980.
Whenever the commissioner shall determine that the construction of a flood control project requires the removal, relocation and reconstruction of any plants, works, holders, pumping stations, pipes, mains, tunnels, bridges, tracks, generating or switching stations, substations, transformers, conduits, cables, wires, towers, poles, or other structures, equipment, apparatus, or appurtenances (herein called "facilities" ) of any public utility, as defined in R.S. 48:2-13, the public utility owning or operating such facilities shall remove, relocate and reconstruct the same, upon the order of the commissioner, and the total cost and expense of the removal, relocation and reconstruction of such facilities, including the cost of installing such facilities in a new location or new locations, and the cost of any lands or any rights or interests in lands, or any other rights, required to accomplish such removal, relocation and reconstruction, shall be considered as a part of the cost of the work. In case of any such removal, relocation and reconstruction of facilities, as aforesaid, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations for as long a period and upon the same terms and conditions as it had the right to maintain and operate such facilities in their former location. No order of the commissioner for the removal, relocation and reconstruction of any such facilities shall be effective unless such order shall have been approved by the Board of Public Utilities. L.1948, c. 351, p. 1412, s. 8. Amended by L.1979, c. 358, s. 7, eff. Jan. 31, 1980.
(1) The commissioner, for the people of the State of New Jersey, shall acquire any property or interest therein necessary for purposes connected with the flood control project by gift, devise or purchase, or by condemnation in the manner provided by the "Eminent Domain Act of 1971," (P.L.1971, c. 361; C. 20:3-1 et seq.). (2) Awards and judgments after condemnation proceedings shall be paid out of State treasury from moneys appropriated for purposes connected with flood control projects. (3) The expense of such acquisitions including the cost of making surveys, and preparing descriptions and maps of property to be acquired, serving notices of appropriation, making appraisals and agreements and of searches ordered and examinations and readings of title, and expenses incurred by the commissioner or Attorney General in proceedings for removal of owners and occupants, shall be deemed part of the cost of such flood control projects. (4) Notwithstanding the provisions of any general, special or local law, the commissioner, his officers or agents, and the officers, agents or contractor of the United States when engaged on flood control projects, may enter upon property for the purpose of making surveys, test pits, test borings, or other investigations. Claim for any damage caused by such work may be adjusted by agreement by the commissioner without taking such property, and payment shall be made in like manner as provided in this act for property taken for flood control purposes. L.1948, c. 351, p. 1413, s. 9. Amended by L.1979, c. 358, s. 8, eff. Jan. 31, 1980.
The commissioner (a) may determine whether any property taken for any of the purposes connected with flood control projects pursuant to this act may be leased, sold or exchanged on terms beneficial to the State, and in all cases of such determination he may lease, sell or exchange such property; in order to carry any such lease, sale or exchange into effect the commissioner is hereby authorized to execute and deliver, in the name of the people of the State, a quit-claim or lease of such property. (b) May also convey to the United States for flood control purposes all right, title and interest of the State in and to any property heretofore or hereafter so taken for any of such purposes for which reimbursement by the United States is made in accordance with section 2 of the Federal Flood Control Act of 1938 being public, numbered 761, Seventy-Fifth Congress, and including improvements made thereon for such purposes. Such conveyance shall be by deed or instrument of quit-claim, executed by the commissioner in the name of the people of the State, delivered to the Federal authority having jurisdiction. This paragraph shall not prevent reservations, if any, in such a conveyance, agreed to by such commissioner and Federal authority, to protect leases or easement, if any, theretofore lawfully made or created by such commissioner. Whenever the United States, acting by and through said Federal authority having jurisdiction, shall cause to be filed in the office of the Secretary of State of this State, a duplicate original of the deed or instrument of conveyance to the United States of any such property for the purposes therein specified, such jurisdiction as may be required for flood control purposes is thereupon ceded to the United States over the property described in said deed or instrument of conveyance, during the time that the United States shall be or remain the owner thereof and shall use such property for flood control purposes. (c) Is hereby authorized to agree with the United States as to the value of the property taken and for legal damages caused by any such taking thereof, as and for reimbursement by the United States and the commissioner is authorized to convey such property to the United States, in the manner herein provided, specifying in such conveyance that the consideration stated therein is the agreed value of such property and legal damages, and is in full reimbursement thereof by the United States. L.1948, c. 351, p. 1414, s. 10. Amended by L.1979, c. 358, s. 9, eff. Jan. 31, 1980.
The Attorney-General is hereby authorized and empowered to certify to the United States of America or a department, agency or authority thereof having jurisdiction therein, the right, title or interest vested in the people of the State of New Jersey in and to property acquired for the purpose of this act for which reimbursement is to be made by the United States of America to the people of the State of New Jersey. L.1948, c. 351, p. 1415, s. 11.
If the commissioner shall determine subsequent to the taking of a temporary easement right in property that the purposes for which such easement right was acquired have been accomplished and that the use and occupancy of said property for flood control purposes are no longer necessary, and that, therefore, the term of such easement should be further limited, or if the taking of such easement was for an indefinite period, that such period should be fixed and determined, or that the period of such easement has by its terms expired, he shall make his certificate that the use and occupancy of such property for flood control purposes are no longer necessary, that the property in which such easement right was acquired is surrendered back to the affected owner of said property and that such easement rights are thereupon terminated, released and extinguished. The said commissioner shall cause a copy of such certificate to be filed in the office of the Clerk of the Superior Court. Upon the filing of such certificate in the office of the Clerk of the Superior Court all rights acquired by the State in such property shall cease and determine. The said commissioner shall cause a copy of such certificate together with notice of the filing thereof in the office of the Clerk of the Superior Court to be mailed to the owner of the property affected, as certified by the Attorney General, if the place of residence of such owner is known or can be ascertained by a reasonable effort. A further copy of such certificate and notice of filing shall be filed in the office of the recording officer of each county wherein the property affected is situated. On the filing of such certificate and notice with such officer it shall be the duty of such officer to record same in the books used for recording deeds in the office of such officer. L.1948, c. 351, p. 1416, s. 12. Amended by L.1953, c. 54, p. 963, s. 33; L.1979, c. 358, s. 10, eff. Jan. 31, 1980.
After the completion of any Federal flood control project or a portion thereof and after such project or portion thereof has been formally turned over to the State by the Federal Government, such completed works shall be maintained by the commissioner under the controlling principle that flood control is the primary purpose. L.1948, c. 351, p. 1417, s. 14. Amended by L.1979, c. 358, s. 11, eff. Jan. 31, 1980.
The moneys hereby appropriated shall be payable on the audit and warrant of the treasurer on vouchers approved by the commissioner. L.1948, c. 351, p. 1417, s. 15. Amended by L.1979, c. 358, s. 12, eff. Jan. 31, 1980.
Notwithstanding any other paragraph of this act, the Commissioner of Conservation shall not exercise any of the powers granted hereinunder until said project or projects shall have been first approved by an act of the Legislature. L.1948, c. 351, p. 1417, s. 16.
Whenever, pursuant to the Federal Flood Control Act of 1938 as supplemented by the Act of August 18, 1941 as amended, the State Treasurer has received or shall receive from the Federal Government all or any part of the moneys received and deposited in the Treasury of the United States on account of the leasing of lands acquired by the United States for flood control, navigation and allied purposes, the State Treasurer shall forthwith pay over said funds to the county or counties in which such property is situate, in proportion to the receipts obtained from the leases of the properties in the respective counties, to be expended by said county or counties for the benefit of any of the public schools and public roads either under the jurisdiction of the county or of the municipality in which any of the aforesaid properties may lie, or for defraying the expenses of county government in such county; provided, that when such property is situated in more than one county, the distributive share to each county from the proceeds of such property shall be proportional to its area therein; and all of said moneys received by the State Treasurer as aforesaid are hereby appropriated to the several counties as hereinbefore provided for the purposes set forth herein. L.1957, c. 67, p. 131, s. 1. Amended by L.1977, c. 181, s. 1, eff. Aug. 18, 1977.
a. This act shall be known and may be cited as the "Flood Hazard Area Control Act." b. It is in the interest of the safety, health, and general welfare of the people of the State that legislative action be taken to empower the Department of Environmental Protection to delineate and mark flood hazard areas, to authorize the Department of Environmental Protection to adopt land use regulations for the flood hazard area, to control stream encroachments, to coordinate effectively the development, dissemination, and use of information on floods and flood damages that may be available, to authorize the delegation of certain administrative and enforcement functions to county governing bodies and to integrate the flood control activities of the municipal, county, State and Federal Governments. L.1962, c. 19, s. 1. Amended by L.1972, c. 185, s. 2, eff. Dec. 14, 1972; L.1979, c. 359, s. 2, eff. Jan. 31, 1980.
As used in this act, unless the context indicates another or different meaning or intent: (a) "Channel" means a watercourse with definite bed and banks which confine and conduct continuously or intermittently flowing water; (b) "Floodway" means the channel of a natural stream and portions of the flood hazard area adjoining the channel, which are reasonably required to carry and discharge the flood water or flood flow of any natural stream; (c) "Flood hazard area" means the floodway and the flood fringe area as determined by the department under section 3 hereof; (d) "Relative risk" means the varying degrees of hazard to life and property in a flood hazard area which are occasioned by differences in depth and velocity of flood waters covering and flowing over it; (e) "Flood fringe area" means that portion of the flood hazard area not delineated as the floodway; (f) "Department" means the Department of Environmental Protection. (g) "Person" means and shall include corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, and shall also include all political subdivisions of this State or any agencies or instrumentalities thereof.
b. (1) The department shall wherever practicable, make flood hazard area delineations at least as protective as the floodplain delineations approved by the Federal Emergency Management Agency for the National Flood Insurance Program. Immediately upon adoption of a floodplain delineation approved by the Federal Emergency Management Agency for the National Flood Insurance Program, the department shall include the federal floodplain delineation as the department's minimum flood hazard area delineation for that watercourse, provided that the department has determined that the federal floodplain delineation is sufficient to carry and discharge the flood flow of the watercourse and is at least as protective of the public safety, health, and general welfare as the department's delineation.
(2) Notwithstanding any other provision of law, or rule or regulation adopted pursuant thereto, to the contrary, a person shall apply for a permit or other approval or authorization issued by the department pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.), for a site based upon a floodplain delineation at least as protective as one approved by the Federal Emergency Management Agency for the National Flood Insurance Program, provided that (a) the federal floodplain delineation is more recent than the department's delineation for the same watercourse, and (b) the department has determined that the federal floodplain delineation is sufficient to carry and discharge the flood flow of the watercourse and is at least as protective of the public safety, health, and general welfare as the department's delineation.
c. The department shall establish a procedure for reducing any delineated flood hazard area when a change has been made which increases the flood carrying capacity of the concerned stream at that location.
The department may conspicuously mark in the field (1) any flood hazard area delineated by the department, and (2) any other area the department may deem necessary to effectuate the purposes of this act. The department may erect markers on any property belonging to the State, or any agency or instrumentality thereof. Such markers may be erected on any county, municipal, or private property provided that such county, municipality, or owner shall have consented thereto. No person may remove, deface or otherwise disturb any marker erected under the provisions of this act. L.1962, c. 19, s. 4. Amended by L.1979, c. 359, s. 13, eff. Jan. 31, 1980.
(a) The department is authorized to adopt, amend and repeal rules and regulations and to issue orders concerning the development and use of land in any delineated floodway which shall be designed to preserve its flood carrying capacity and to minimize the threat to the public safety, health and general welfare. Such rules and regulations or orders may require the approval of the department for specified changes in the use of land within any such floodway. (b) Provision shall be made by the department for the waiver, according to definite criteria, of strict compliance with the rules and regulations, where necessary to alleviate hardship. L.1972, c. 185, s. 4, eff. Dec. 14, 1972. Amended by L.1979, c. 359, s. 5, eff. Jan. 31, 1980.
No rule or regulation adopted pursuant to section 4 or 7 of P.L.1972, c. 185 (C. 58:16A-55 or 58) shall prevent the repair or rebuilding within a flood hazard area of any lawful preexisting structure which was damaged by a flood or by any other means. L.1977, c. 385, s. 1, eff. Feb. 10, 1978.
a. No structure or alteration within the area which would be inundated by the 100 year design flood of any nondelineated stream shall be made, rebuilt or renewed by any person without the approval of the department and without complying with such conditions as the department may prescribe for preserving such area and providing for the flow of water therein to safeguard the public against danger from the waters impounded or affected by such structure or alteration. No such approval by the department shall impair or affect any property rights otherwise existing which might be invaded by the construction or maintenance of any such structure or alteration. b. The department is authorized, pursuant to the "Administrative Procedure Act" P.L.1968, c. 410 (C. 52:14B-1 et seq.), to adopt, amend or repeal rules and regulations and to issue orders concerning the making, rebuilding or renewing of any structure or alteration and the development or use of land in the area which would be inundated by the 100 year design flood of any nondelineated stream, which rules and regulations shall be designed to preserve the flood carrying capacity of the stream to minimize the threat to the public safety, health and general welfare. Such rules and regulations shall include a provision which exempts, according to definite criteria, certain minor structures or alterations of a specific size or type from the provisions of subsection a. of this section. L.1979, c. 359, s. 6, eff. Jan. 31, 1980.
No application for development as defined in the "Municipal Land Use Law," P.L.1975, c. 291 (C. 40:55D-1 et seq.), for a structure within the area which would be inundated by the 100 year design flood of any nondelineated stream or for a change in land use within a delineated floodway or any State-administered and delineated flood fringe area when such change would require departmental approval, may be granted by any municipality to any person without application to and approval by the department as required pursuant to this act. L.1979, c. 359, s. 9, eff. Jan. 31, 1980.
Any county governing body may prepare a stormwater control and drainage plan for the county. Such plans shall be prepared after consultation and discussion with the Department of Environmental Protection and with adjacent counties and shall consider and evaluate the impact of any developments within the county or upstream from the county on the streams within the county and downstream from the county. Such plans may be financed in part from the "Emergency Flood Control Bond Act" (P.L.1978, c. 78). County stormwater control and drainage plans prepared as herein provided shall be utilized by the department in deciding to approve or disapprove any application submitted pursuant to this act. L.1979, c. 359, s. 10, eff. Jan. 31, 1980.
Any county governing body may by ordinance or resolution as appropriate, create a county water resources association which may include the chief administrative officer of any county planning agency, county engineers office, county utilities authority, county health department, county mosquito commission, county soil conservation district, or county parks agency and any other public or private members. The county water resources association shall advise the county governing body, shall coordinate the flood control and water management programs for the county and shall have such powers as the county governing body may delegate to it concerning water management in the ordinance or resolution of creation. L.1979, c. 359, s. 11, eff. Jan. 31, 1980.
The Department of Environmental Protection may delegate its power to approve or disapprove any application made to it pursuant to this act and its power to enforce any aspect of this act to a county governing body which agrees to accept such designation and in the department's judgment is capable of utilizing the rules, regulations and standards adopted by the department for the administration of this program. The department shall review this delegation at least biannually and may revoke such delegation for failure to properly administer such delegated powers. The county governing body may charge the same fees promulgated by the commissioner pursuant to P.L.1975, c. 232 (C. 13:1D-33), when such powers are delegated to it. L.1979, c. 359, s. 12, eff. Jan. 31, 1980.
(1) The facility at which any containers holding hazardous substances are to be placed or stored is in compliance with flood protection measures to prevent the release of hazardous substances due to flooding, as follows: (a) an approved engineering design of site-specific flood protection devices designed to prevent washout; or (b) an approved written plan of emergency procedures for removing the containers to safety or out of the facility before the facility is flooded; and
(2) Every container is visibly marked in a manner determined in rules and regulations adopted by the department pursuant to the "Administrative Procedure Act" with a label designed and affixed to ensure that the label shall remain visible and in place if there is a flood or other natural disaster stating the following:
Caution: Hazardous Contents
To be handled and opened only by authorized personnel
If found, please contact
The New Jersey Department of Environmental Protection
1-877-927-6337
b. The labeling requirements of subsection a. of this section shall not apply to containers required to be labeled pursuant to other State or federal laws or containers labeled pursuant to the "Federal Insecticide, Fungicide, and Rodenticide Act," 7 U.S.C. s.136 et seq.
c. For the purposes of this section, "container" means a receptacle used to hold a liquid, solid, or gaseous substance, including, but not limited to, bottles, bags, barrels, boxes, cans, cylinders, drums, cartons, vessels, vats, and stationary or mobile storage tanks; except that "container" shall not include process containers, pipelines or underground storage tanks.
The department shall promulgate minimum standards for the adoption of local rules and regulations concerning the development and use of land in the flood fringe area designed to minimize the threat to the public safety, health and general welfare. L.1972, c. 185, s. 5, eff. Dec. 14, 1972.
Within 12 months after the delineation of any flood hazard area, and at least 12 months after the promulgation of standards by the department, the affected municipality or other responsible entity shall adopt rules and regulations concerning the development and use of land in the flood fringe area which at least conform to the standards promulgated by the department. L.1972, c. 185, s. 6, eff. Dec. 14, 1972.
If any affected municipality or other responsible entity fails to adopt or fails to enforce rules and regulations concerning the development and use of land in the flood fringe area which at least conform to the standards promulgated by the department within the specified period, thereafter the department may adopt such rules and regulations which shall be applicable to the particular flood fringe area. Such rules and regulations may require application to and approval by the department for such development or use within any such flood fringe area. L.1972, c. 185, s. 7, eff. Dec. 14, 1972. Amended by L.1979, c. 359, s. 14, eff. Jan. 31, 1980.
No rule or regulation adopted by the department pursuant to sections four or seven of this act shall become effective until after notice and public hearing before the department as required by the Administrative Procedures Act (C. 52:14-1 et seq.). L.1972, c. 185, s. 8, eff. Dec. 14, 1972.
Any rules and regulations adopted pursuant to this act shall not apply to the extent that lands affected thereby are regulated pursuant to "the Wetlands Act of 1970" (P.L.1970, c. 272) (C. 13:9A-1 et seq.).
Local assessors shall consider the impact of rules or regulations issued pursuant to this act in establishing full value of lands designated as floodways or as flood fringe areas.
Any municipal or other entity vested with authority to adopt rules and regulations concerning the development and use of land may adopt requirements more restrictive than those contained in the rules and regulations adopted by the department for the floodway and than those contained in the minimum standards promulgated by the department.
(1) Issue an administrative enforcement order requiring any such person to comply in accordance with subsection b. of this section;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) Levy a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the administrative enforcement order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by a violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to assess a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, assess civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may assess any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final administrative enforcement order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final administrative enforcement order after the expiration of the 35-day period. Payment of the assessment is due when a final administrative enforcement order is issued or the notice becomes a final administrative enforcement order. The authority to levy a civil administrative order is in addition to all other enforcement provisions in P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. In addition to the penalties prescribed in this section, the commissioner may record a notice for a violation of any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, which shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed. Any fees or other charges that are assessed by either the clerk or register of deeds and mortgages of the county wherein the affected property is located or the department for the recording of the notice of violation on the deed required pursuant to this subsection shall be paid by the owner of the affected property or person committing the violation. The commissioner shall immediately order the notice removed once the violation is remedied or upon conditions set forth by the commissioner.
h. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto.
This act shall be liberally construed to effectuate the purpose and intent thereof.
The powers, duties and functions vested in the State Department of Environmental Protection under the provisions of this act shall not be construed to limit in any manner the functions, powers and duties vested in the State Department of Environmental Protection under any other provisions of the law.
If any provision of this act or the application thereof to any person or circumstances is held invalid, the remainder of the act and the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.
(1) the project is being undertaken solely for the purpose of stream cleaning, clearing, or desnagging;
(2) the removal of any material will not extend below the natural stream bed;
(3) the activities will not alter the natural stream banks;
(4) the activities will consist of the removal only of accumulated sediments, debris, and garbage from a stream with a natural stream bed or the removal of any accumulated material from a stream previously channelized with concrete or similar artificial material;
(5) every effort will be made to perform work from only one stream bank and that vegetation and canopy on the more southerly or westerly banks will be preserved for stream shading; and
(6) the activities are necessary and in the public interest.
The notice shall also include a description of the nature of the project, a description, including a photograph, of the reach of the stream in which the activity is to take place, and an identification of the regulatory water quality classification of the stream in which the activity is to take place. The reach of the stream may be provided by the submission of a photostatic copy of the United States Geological Survey topographic quadrangle.
b. For any project that includes sediment removal, in addition to the conditions enumerated in subsection a. of this section, the following conditions must be met:
(1) (Deleted by amendment, P.L.2015, c.210)
(2) the stream to be cleaned, cleared, or desnagged is not classified as pinelands waters or category one waters;
(3) the stream bed is 30 feet or less in average width;
(4) the stream corridor to be cleaned, cleared, or desnagged is:
(a) in the case of a project undertaken by a municipality, or a designated agency thereof, located wholly within the jurisdictional boundaries of that municipality; or
(b) in the case of a project undertaken by a county, or a designated agency thereof, (i) located wholly within the jurisdictional boundaries of one municipality, or (ii) less than 500 feet in length if located within more than one municipality;
(5) the stream is not in a municipality, as defined by the department, that is known to have federally or State listed threatened or endangered species associated with its wetlands. Regulated activities in these municipalities shall be coordinated with federal agencies;
(6) the applicant shall provide a certification by the engineer that the material to be removed is not beyond the natural stream bed;
(7) the applicant shall submit surface color photographs of the areas of the stream to be cleaned, cleared, or desnagged and of the access points; and
(8) the applicant shall incorporate appropriate timing restrictions as required by the department.
c. Upon receipt of a notice and certification submitted pursuant to this section, the department, or any other State agency requiring a stream cleaning permit or an application for the proposed stream cleaning, clearing, or desnagging project, as the case may be, shall, except as provided otherwise in this subsection, have 15 days to notify the applicant if particular circumstances mandate that the stream cleaning, clearing, or desnagging not be done in this particular case. For a project involving the removal of sediment, the department shall have 60 days prior to the commencement of activities to notify the applicant if particular circumstances mandate that the stream cleaning, clearing, or desnagging not be done in that particular case. If the department, or any other State agency requiring a stream cleaning permit or an application for the proposed stream cleaning, clearing, or desnagging project, as the case may be, makes such a determination, it shall provide the applicant with the technical reasons therefor. For the purposes of this subsection, if the department's technical reasons therefor are based upon the inability to determine the natural stream bed, the department shall, at the request of the applicant, assist in identifying the natural stream bed. The department may not prohibit the removal of any garbage no matter how long it has been in the stream, nor shall the department require extensive mapping or other engineering services which involve significant expense to the municipality.
d. Upon completion of the project to clean, clear, or desnag a stream involving the removal of sediment within its jurisdiction, the applicant shall submit to the department a written notice that the project has been completed in accordance with the conditions outlined in subsection b. of this section. The notice shall contain a certification attested to by the county or municipal engineer or the local soil conservation district, provided that the certification is made by a licensed professional engineer. The engineer shall certify that all the conditions in subsection b. of this section have been adhered to.
e. As used in this section:
"Applicant" means a county or municipality, or designated agency thereof;
"Category one waters" means, for the purposes of sediment removal, those waters designated by the Department of Environmental Protection, for purposes of implementing the antidegradation policies of the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), for protection from measurable changes in water quality characteristics because of their clarity, color, scenic setting, other characteristics of aesthetic value, exceptional ecological significance, exceptional recreational significance, exceptional water supply significance, or exceptional fisheries resources. These waters may include, but are not limited to:
(1) Waters originating wholly within federal, interstate, State, county, or municipal parks, forests, fish and wildlife lands, and other special holdings that have not been designated by the department as FW1;
(2) Waters classified by the department as FW2 trout production waters and their tributaries;
(3) Surface waters classified by the department as FW2 trout maintenance waters or FW2 nontrout waters that are not more than 750 feet upstream of waters classified by the department as FW2 trout production waters;
(4) Shellfish waters of exceptional resource value; or
(5) Other waters and their tributaries that flow through, or border, federal, State, county or municipal parks, forest, fish and wildlife lands, and other special holdings;
"Department" means the Department of Environmental Protection;
"FW" means the general surface water classification applied to fresh waters;
"FW1" means those fresh waters that originate in and are wholly within federal or State parks, forests, fish and wildlife lands, and other special holdings, that are to be maintained in their natural state of quality and not subjected to any man-made wastewater discharges;
"FW2" means the general surface water classification applied to those fresh waters that are not designated as FW1 or pinelands waters;
"Trout maintenance waters" means waters designated by the department for the support of trout throughout the year; and
"Trout production waters" means waters designated by the department for use by trout for spawning or nursery purposes during their first summer.
f. Any person or governmental entity violating the provisions of this section shall be subject to penalties imposed for violations of the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.).
g. Nothing in this section shall be construed to prohibit the department from requiring a county or municipality, or designated agency thereof, to obtain a permit pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.) for a proposed stream cleaning, clearing, or desnagging project involving any activity that does not adhere to the conditions and requirements set forth in subsections a. and b. of this section.
b. Any municipality, either alone or jointly with any other municipality, may establish a plan, with the approval of the Department of Environmental Protection, to maintain the water level of any lake or reservoir within its borders at a level necessary to provide an equivalent surface water safe yield established by the department for any affected water supply system and protection against flooding. Any such plan shall (1) comply with the provisions of R.S.23:5-29, P.L.1981, c.262 (C.58:1A-1 et seq.), and R.S.58:4-1 et seq., (2) include a calculation of the quantity of storage necessary to achieve a given level of flood control protection, (3) consider the environmental impact upon aquatic resources and fish spawning, the impact upon recreational use, and the financial impact upon all users of the lake or reservoir, and (4) consider any other criteria deemed necessary by the department. The department shall hold a public hearing prior to approval of a plan to seek input on the plan from any municipality that borders the lake or reservoir, or borders a river, stream or brook that feeds into or flows from that lake or reservoir. The department shall issue its decision on the plan in writing and transmit a copy thereof to each affected municipality and water supply purveyor prior to the effective date of the decision. No plan that jeopardizes safe yield and the provision of adequate water supply or reduces current safe yield levels of any lake or reservoir shall be approved by the department. No plan within the area of jurisdiction of the New Jersey Water Supply Authority may be established without the approval of the authority.
c. Nothing in this section shall be construed to supersede any other State law that applies to the construction of flood control facilities or the regulation of water levels in lakes or reservoirs.
a. The Commissioner of the Department of Environmental Protection shall, in consultation with the United States Army Corps of Engineers and in coordination with the Office of Emergency Management in the Division of State Police, develop a flood early warning system.
b. The flood early warning system shall consist of weather, rainfall and stream data collection devices required to enable the National Weather Service to predict with reasonable accuracy what areas are likely to flood, at what levels, and the specific locations of overflow.
a. As soon as the flood early warning system indicates and the Office of Emergency Management has been notified by the National Weather Service that an area is in danger of flooding, the Office of Emergency Management shall notify the emergency management organizations in the counties, which shall then notify the local police department or the municipal emergency management organization, as appropriate.
b. Once the determination is made to evacuate persons in the flood area, the Office of Emergency Management shall request that local news media broadcast the following message every quarter hour on the quarter hour:
"The Office of Emergency Management has been advised by the National Weather Service that the (body of water) is approaching critical flood stage and the properties adjacent to (streets, roads, avenues, other general addresses or vicinities) in the municipalities of are in danger of flooding at a level of feet. All persons located in those areas should take appropriate action to evacuate the area in an orderly fashion."
b. The Office of Emergency Management shall maintain a regional directory database containing a listing of public and private entities that provide emergency supplies and which identifies emergency supplies and other resources these entities can make available during an emergency.
"Existing structure" means any structure that existed on October 28, 2012.
"Highest applicable flood elevation standard" means the new FEMA base flood elevation plus an additional three feet, or any applicable flood elevation standard required pursuant to N.J.A.C. 7:13-1.1 et seq. and adopted by the Department of Environmental Protection pursuant to the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.), whichever is higher.
"New and appropriate elevation" means any elevation to which a structure is raised, or is to be raised, that is equal to or higher than the applicable new FEMA base flood elevation, provided, however, in no case shall the new and appropriate elevation exceed the highest applicable flood elevation standard.
"New FEMA base flood elevation" means any base flood elevation proposed or adopted after October 28, 2012, by the Federal Emergency Management Agency.
"Original dimensions" means the exact vertical and horizontal dimensions of a structure as it existed on October 28, 2012.
"Sandy-damaged structure" means any structure that existed on October 28, 2012 and was damaged or destroyed by Hurricane Sandy.
"Structure" means any dwelling or building; however, in the case of attached townhouses or row houses for which title to each townhouse or row house building, including the roof and other structural elements, is held in fee simple, " structure" means a single townhouse or single row house. "Structure" shall not include a unit which is part of a condominium as defined in P.L.1969, c.257 (C.46:8B-1 et seq.).
b. (1) Notwithstanding the provisions of any other law to the contrary, except as otherwise provided pursuant to paragraph (2) of this subsection, a person shall be exempt from any development regulation, including any requirement to apply for a variance therefrom, that otherwise would be violated as a result of raising an existing structure to a new and appropriate elevation, or constructing a staircase or other attendant structure necessitated by such raising, provided, however, this exemption shall apply only to the minimum extent or degree necessary to allow the structure to meet the new and appropriate elevation with adequate means of ingress and egress.
(2) The exemption established pursuant to paragraph (1) of this subsection shall not be available to a person who has altered the original dimensions of a structure if, had the alteration not been made, the structure could have been raised to meet the new and appropriate elevation either without the exemption or with an exemption of lesser degree than is needed with the alteration.
c. (1) Notwithstanding the provisions of any other law to the contrary, except as otherwise provided pursuant to paragraph (2) of this subsection, a person shall be exempt from any development regulation, including any requirement to apply for a variance therefrom, that otherwise would be violated as a result of using a new and appropriate elevation when lawfully repairing or reconstructing a Sandy-damaged structure, or constructing a staircase or other attendant structure necessitated by use of the new and appropriate elevation, provided, however, this exemption shall apply only to the minimum extent or degree necessary to allow the Sandy-damaged structure to meet the new and appropriate elevation with adequate means of ingress and egress.
(2) The exemption established pursuant to paragraph (1) of this subsection shall not be available to a person whose repair or reconstruction plan would alter the original dimensions of a structure when, if not for the alteration, the structure could otherwise be raised to meet the new and appropriate elevation either without the exemption or with an exemption of lesser degree than is needed with the alteration.
d. Notwithstanding the provisions of any other law to the contrary, any deed restriction or agreement, no matter when entered into or made, that prohibits or has the effect of prohibiting any otherwise lawful raising or constructing of a structure to a new and appropriate elevation is contrary to public policy and therefore shall be unenforceable , except that all other covenants, easements, and restrictions of a common interest community shall remain in force, and costs associated with the construction, repair, or other related improvements to neighboring properties and common elements shall be borne solely by the owner of the structure which will be raised or constructed to a new elevation.
To the end that municipalities may not suffer loss of taxes by reason of the acquisition and ownership by the State of New Jersey of property therein, the State Treasurer upon certification of the Commissioner of Conservation and Economic Development shall pay annually on October 1 to each municipality in which property is acquired pursuant to this act (a) a sum equal to that last paid as taxes upon such land for the taxable year immediately prior to the time of its acquisition and (b) in addition, for a period of 13 years beginning with the year 1958 the following amounts: in the first year a sum of money equal to that last paid as taxes upon improvements upon such land for the taxable year immediately prior to the time of its acquisition; and thereafter the following percentages of the amount paid in the first year, to wit, second year 92%; third year 84%; fourth year 76%; fifth year 68%; sixth year 60%; seventh year 52%; eighth year 44%; ninth year 36%; tenth year 28%; eleventh year 20%; twelfth year 12%; thirteenth year 4%. All sums of money received by the respective municipalities as compensation for loss of tax revenue pursuant to this section shall be applied to the same purposes as is the tax revenue from the assessment and collection of taxes on real property of the said municipalities, and to accomplish this end such sums shall be apportioned in the same manner as the general tax rate of the municipality for the tax year preceding the year of receipt. The State shall be reimbursed for payments required to be made by this section out of the proceeds received for the sale of water supplied by said system. The State Treasurer shall also pay to any county or municipality the cost of relocating any municipal or county roads made necessary by reason of the acquisition or use of property pursuant to this act.
To the end that municipalities may not suffer loss of taxes by reason of the acquisition and ownership by the State of New Jersey of property therein, the State Treasurer upon certification of the Commissioner of Conservation and Economic Development shall pay annually on October 1 to each municipality in which property is acquired pursuant to this act (a) a sum equal to that last paid as taxes upon such land for the taxable year immediately prior to the time of its acquisition and (b) in addition, for a period of 13 years following such acquisition the following amounts: in the first year a sum of money equal to that last paid as taxes upon improvements upon such land for the taxable year immediately prior to the time of its acquisition; and thereafter the following percentages of the amount paid in the first year, to wit, second year 92%; third year 84%; fourth year 76%; fifth year 68%; sixth year 60%; seventh year 52%; eighth year 44%; ninth year 36%; tenth year 28%; eleventh year 20%; twelfth year 12%; thirteenth year 4%. All sums of money received by the respective municipalities as compensation for loss of tax revenue pursuant to this section shall be applied to the same purposes as is the tax revenue from the assessment and collection of taxes on real property of the said municipalities, and to accomplish this end such sums shall be apportioned in the same manner as the general tax rate of the municipality for the tax year preceding the year of receipt. The State shall be reimbursed for payments required to be made by this section out of the proceeds received for the sale of water supplied by said system. The State Treasurer shall also pay to any county or municipality the cost of relocating any municipal or county roads made necessary by reason of the acquisition or use of property pursuant to this act.
There is hereby appropriated from the Water Conservation Fund to the Department of Environmental Protection the sum of $29 million, or so much thereof as may be necessary, for the development of future water supply facilities to the following extent:
(a) A sum not to exceed $2 million for the costs of design and engineering for future construction of water supply facilities;
(b) A sum not to exceed $27 million for the acquisition of real property necessary for the future water supply facilities at the following sites:
South River Tidal Dam, Middlesex county; Raritan River Confluence Reservoir, Somerset county; Manasquan River Upper and Lower Reservoirs, Monmouth county; Six-Mile Run Reservoir, Somerset county; Two Bridges Reservoir, Essex and Morris counties; Hackettstown Reservoir, Morris, Sussex and Warren counties.
As used in this act unless the context clearly indicates otherwise:
(a) "Real property" means lands, within or without the State, and improvements thereof or thereon, any and all rights-of-way, water, riparian and other rights, any and all easements, and privileges in real property, and any right or interest of any kind or description in, relating to or connected with real property;
(b) "Water supply facility" means and refers to the real property and the plants, structures, machinery and equipment and other property, real, personal and mixed, acquired, constructed or operated, or to be acquired, constructed or operated in whole or in part by or on behalf of the State, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, and any and all appurtenances necessary, useful or convenient for the collecting, impounding, storing, improving or transmitting of water, and for the preserving and protecting of these resources and facilities and providing for the conservation and development of future water supply resources, and facilitating incidental recreational uses thereof;
(c) "Commissioner" means the Commissioner of Environmental Protection.
Acquisition of real property for water supply facilities as authorized by this act may be made by purchase or by the exercise of the power of eminent domain, pursuant to the provisions of chapter 1 of Title 20 of the Revised Statutes. L.1970, c. 147, s. 3, eff. July 17, 1970.
Where in connection with the acquisition of such real property, it shall be necessary to acquire lands, portions of which are deemed by the Commissioner of Environmental Protection to be in excess of the State's needs, the commissioner, on behalf of the State, is authorized to enter into agreements of exchange and to convey, such excess portions of land, as part or all of the consideration for the purchase of other lands herein authorized and directed to be acquired. The commissioner may permit municipalities in which the acquisition of lands is authorized by this act the first option to purchase for recreational purposes any lands in said municipalities acquired under section 1 of this act which may be subsequently determined to be in excess for the anticipated water supply facility. In the event such excess portions of lands in the judgment of the commissioner cannot feasibly be so exchanged or sold as aforesaid, the commissioner, on behalf of the State, is authorized to enter into agreements of public sale and to convey such excess portions of lands after public advertisement to the highest bidder therefor, the proceeds of such sale to be applied to the purchase of other lands herein authorized and the balance of proceeds, if any, to be returned to the Water Conservation Fund. L.1970, c. 147, s. 4, eff. July 17, 1970.
Real property acquired as authorized pursuant to this act shall be held primarily for use in connection with a water supply system, but shall also be made available, as a State reservation, for recreational and other State uses consistent with its primary use, in accordance with rules and regulations to be promulgated by the Commissioner of Environmental Protection. L.1970, c. 147, s. 5, eff. July 17, 1970.
To the end that municipalities may not suffer loss of taxes by reason of the acquisition and ownership by the State of New Jersey of property therein, the State Treasurer upon certification of the Commissioner of Environmental Protection shall pay annually on October 1 to each municipality in which property is acquired as authorized pursuant to this act: a. A sum equal to that last paid as taxes upon such land and improvements for the tax year immediately prior to its acquisition, which payments shall continue to be made annually until the year in which actual construction of water supply facilities on the property is undertaken, and thereafter; b. Beginning with the year in which actual construction of water supply facilities is undertaken on the property, and annually thereafter, a sum equal to the amount last paid as taxes upon such land alone, and in addition; c. Beginning with the year in which such actual construction of water supply facilities is undertaken and continuing for a period of 12 years, a sum equal to the following percentages of the amount last paid as taxes upon improvements upon such land: 92% in the first year, 84% in the second year, 76% in the third year, 68% in the fourth year, 60% in the fifth year, 52% in the sixth year, 44% in the seventh year, 36% in the eighth year, 28% in the ninth year, 20% in the tenth year, 12% in the eleventh year, and 4% in the twelfth year. All sums of money received by the respective municipalities as compensation for loss of tax revenue pursuant to this section shall be applied to the same purposes as is the tax revenue from the assessment and collection of taxes on real property of the said municipalities, and to accomplish this end such sums shall be apportioned in the same manner as the general tax rate of the municipality for the tax year preceding the year of receipt. The State shall be reimbursed for payments required to be made by this section out of the proceeds received for the sale of water supplied by the facility or system of which it may be a part. The State Treasurer shall also pay to any county or municipality the cost of relocating any municipal or county roads made necessary by reason of the acquisition or use of property pursuant to this act. L.1970, c. 147, s. 6, eff. July 17, 1970.
This act shall be known and may be cited as the "New Jersey Water Supply Law, 1958." L.1958, c. 34, p. 94, s. 1.
The Legislature hereby finds and determines that--
(a) Adequate supplies of wholesome water are essential to the health, welfare, commerce and prosperity of the people of the State. Such supplies will be best developed by long-range plans, to be put into effect in stages during a period of years. The formulation and execution of such plans cannot safely be allowed to wait until the shortage of water in the State becomes critical in all parts of the State.
(b) The needs of the State's growing population and expanding industrial development require the establishment of new and additional water supply facilities; the planning for and, subject to specific authorization by law, the acquisition of sites for the establishment of future water supply facilities; and a continuing program of studies and investigations to determine the resources and potentials for development of the ground waters of the State.
(c) There is an immediate need for a new major supply of water to meet the present acute water requirements in the northeastern metropolitan counties and in the Raritan Valley, areas which directly and indirectly affect the commerce and prosperity of the entire State.
(d) The existing water sources in the Hackensack, Passaic, Rockaway, Wanaque and Pequannock rivers have been and are now being developed to the reasonable limit of the capacity of these rivers by municipalities and water companies in the northeastern region of New Jersey. Well supplies in this region have also approached their limit of practicable development.
(e) Delaware Valley water supplies can ultimately be made available for New Jersey's long-range needs. Such supplies are dependent on a comprehensive survey now being conducted by the United States Army Corps of Engineers, on a United States Supreme Court decision to establish the rights of the several States involved and on joint legislation of and co-operation between New Jersey and neighboring States.
(f) The Raritan river basin is the only area where large quantities of additional water can be obtained immediately and economically to serve the northeastern metropolitan counties as well as the counties in the Raritan Valley. This basin is about equal in size to the Passaic river basin, is wholly within the State, is reasonably close to the counties needing water and is virtually undeveloped for water supply.
(g) The establishment of an on-river reservoir at Spruce Run will provide additional water supply from the Raritan river basin, provide a source of water to fill the reservoir at Round Valley, and provide increased and sustained minimum flows in the south branch downstream thereof and in the Raritan river. The combined development of an off-river reservoir in the Round Valley area now under acquisition by the State for reservoir purposes with the smaller and cheaper on-river reservoir at Spruce Run will provide water supply storage for delivery of water in pipelines at the user's expense to areas within and without the Raritan river basin for areas desiring that type of supply as well as stream flow regulation for multiple use to serve areas, both within and without the basin, which prefer to obtain their supply at less initial cost from stream channels nearer to the area of demand. Water from the reservoirs will also be available for local use. The increased and sustained minimum flows will improve the quality of the water in the river, will tend to reduce the salinity in the tidal reaches, and will improve the upper river and its tributaries for recreational purposes. Water for filling the reservoirs will not interfere with the higher sustained low flow specified by law and will not in any event adversely or otherwise affect the storage of water impounded in upstream lakes.
(h) The provisions proposed for the development of water storage facilities on the Raritan river basin are also applicable, with minor modifications, to the conservation and development of the ground-water resources of the South Jersey Coastal Plain and elsewhere in favorable areas throughout the State to provide storage and tide dam facilities to create artificial recharge of ground-water aquifers in areas of heavy pumpage and to protect such areas from surface pollution and salt water intrusion. They also provide a basis for State participation in the long-range, authorization plan now under study by the United States Army Corps of Engineers for the development of the water resources of the interstate Delaware river basin.
(i) It is therefore in the interest of the health, safety and prosperity of the people of the State as a whole, that immediate legislative action be taken towards making provision for storage facilities to augment natural water resources to make available an adequate supply of water for the most critical need and in addition provide for a long-range program for development, as shall be required, of the remaining water resources of the State.
As used in this act, unless the context indicates another or different meaning or intent:
(a) "Department" means the Department of Conservation and Economic Development, or its successor.
(b) "Construct" and "construction" mean, in addition to the usual meanings thereof, acts of construction, reconstruction, replacement, extension, improvement and betterment.
(c) "Cost" shall mean, in addition to the usual connotations thereof, the cost of acquisition or construction of all or any part of a water supply facility and of all or any real or personal property, agreements and franchises deemed by the department to be necessary or useful and convenient therefor or in connection therewith, including interest or discount on bonds, cost of issuance of bonds, cost of geological and hydrological services, engineering and inspection costs and legal expenses, cost of financial, professional and other estimates and advice, organization, administrative, operating and other expenses prior to and during such acquisition or construction, and all such other expenses as may be necessary or incident to the financing, acquisition, construction and completion of such water supply facility or part thereof and the placing of the same in operation, and also such provision for reserves for working capital, operating, maintenance or replacement expenses and for payment or security of principal of or interest on bonds during or after such acquisition or construction as the State Comptroller may determine, and also reimbursements to the State General Fund of any moneys theretofore expended for or in connection with such water supply facility.
(d) "Commissioner" means the Commissioner of Conservation and Economic Development.
(e) "Council" means the Water Policy and Supply Council in the Division of Water Policy and Supply.
(f) "Division" means the Division of Water Policy and Supply in the Department of Conservation and Economic Development.
(g) "Net revenues" means all revenues received by the department or division from the operation of a water supply facility, or any part thereof, in excess of the operating expenses thereof and provision for such reasonable reserves therefor as the State Comptroller may require or approve.
(h) "Operating expenses" means, in addition to the usual meanings thereof, all costs and expenses of operating, maintaining, managing, repairing and reconstructing a water supply facility and each and every part thereof including, without limiting the generality of the foregoing, administrative expenses, premiums on insurance, including use and occupancy insurance and casualty insurance, costs of collection of any revenues, legal and engineering expenses, payments to employee retirement, insurance, health and hospitalization funds, expenses, liabilities and compensation of fiduciaries, and any other expenses required to be paid for or with respect to proper operation or maintenance of such water supply facility.
(i) "Project" means any work for the protection and preservation or for the development, conservation, regulation or recreational use of a water supply facility, which is separately planned, financed or identified by the department or division.
(j) "Real property" means lands, within or without the State, and improvements thereof or thereon, any and all rights of way, water, riparian and other rights, any and all easements and privileges in real property, and any right or interest of any kind or description in, relating to or connected with real property.
(k) "Water supply facility" or "facility" means and refers to the real property and the plans, structures, machinery and equipment and other property, real, personal and mixed, acquired, constructed or operated, or to be acquired, constructed or operated by or on behalf of the State, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, and any and all appurtenances necessary, useful or convenient for the collection, storage, control, sale or exchange of water, and to preserve and protect these resources and facilities and provide for the conservation and development of future water supply sources, and to facilitate incidental recreational uses of either of them.
The department shall, through the division or otherwise
(a) Plan, design, develop, acquire, construct, and place in operation and maintain the following water supply facilities and may expend or commit from the proceeds of the New Jersey Water Bond Act, 1958, an amount not exceeding $39,500,000.00 for the cost thereof:
(1) A reservoir of approximately 55 billion gallons capacity in the area, commonly known as Round Valley, located in the county of Hunterdon, acquired or in the process of being acquired pursuant to the provisions of chapter 60 of the laws of 1956, hereinafter referred to as the Round Valley reservoir; together with such works, structures, pumping plants, pipelines, force mains, and other facilities as may be necessary or useful to divert or pump water thereto, release water therefrom, and provide for the storage of water therein. The source of waters for said reservoir shall be either or both the south branch of the Raritan river or the Delaware river, exclusive of its tributaries.
(2) A reservoir of approximately 10 billion gallons capacity to be created by the construction of a dam or dams on Spruce Run and Mulhockaway creek tributaries of the south branch of the Raritan river, located northwest of the town of Clinton in the county of Hunterdon, hereinafter referred to as the Spruce Run reservoir; together with such works and facilities as may be necessary or useful for the storage of waters and to regulate the flow in the south branch of the Raritan river and of the Raritan river above and below its confluence with the Millstone river.
(b) Carry out a 10-year program of detailed geological and hydrological studies and ground-water investigations, inventories and reports throughout the State by means of test drillings, observation wells, and any other means necessary to determine ground-water resources, quality, and supply potentials, and may expend or commit from the proceeds of said bond act an amount not exceeding $125,000.00 in any 1 year plus any unexpended or uncommitted balance from any prior year or years and $1,250,000.00 overall for the cost thereof.
(c) By studies, tests and actual field experiments, determine the practicability and suitability in this State of developing and utilizing natural ground-water storage to supplement on-stream reservoir storage as a source of water supply, and may expend or commit from the proceeds of said bond act an amount not exceeding $100,000.00 for the cost thereof.
(d) Continue to research, plan and design ways and means of improving stream flows in the Raritan Watershed or in the Millstone Watershed or both, whether by river regulation reservoirs, pumping, flow diversion, water re-use, or other means, or any combination thereof, deemed practicable to meet the needs of the area or areas; and acquire, as and when authorized specifically by law after public hearing, real property in any area in said watersheds as shall be suitable as a site or sites for the establishment of an additional water supply facility or facilities including any real property in any area in said watersheds where the utilization of natural ground-water storage to supplement on-stream reservoir storage as a source of water supply is determined to be practicable and suitable. The proceeds of said bond act in an amount not exceeding in the aggregate $3,000,000.00 may be expended or committed for the costs thereof.
(e) Continue to research, plan and design ways and means of improving stream flows in any other area or areas, whether by river regulation reservoirs, pumping, flow diversion, water reuse, or other means, or any combination thereof, deemed practicable to meet the needs of the area or areas; and acquire, as and when authorized by law after public hearing, real property in any such area or areas as shall be suitable as a site or sites for the establishment of an additional water supply facility or facilities including any real property in any such area or areas where the utilization of natural ground-water storage to supplement on-stream reservoir storage as a source of water supply is determined to be practicable and suitable. The proceeds of said bond act in an amount not exceeding in the aggregate $2,000,000.00 may be expended or committed for the costs thereof.
The department may expend or commit any remaining funds unexpended or uncommitted as hereinabove authorized for any project, as defined herein, as shall be authorized specifically by law. L.1958, c. 34, p. 101, s. 5.
Any funds of the State heretofore authorized by law to be expended for any of the specific purposes authorized by this act and which have been or shall be so expended, shall be refunded to the State General Fund, and returned from it to any other fund from which the same may have been transferred, from the proceeds of said bond act allocated to such purpose. L.1958, c. 34, p. 101, s. 6.
Not less than 830,000 gallons of water daily shall be released at all times into Prescott brook from the Round Valley reservoir and at all times not less than 170,000 gallons of water daily shall be released into the south branch of the Rockaway creek from the Round Valley reservoir.
b. The commissioner is authorized to alter the passing flow requirements set forth in subsection a. of this section as necessary to ensure the protection of the public health, safety or welfare, or the protection of the environment.
c. The commissioner shall alter the releases of water from the Spruce Run reservoir or the Round Valley reservoir as provided in subsection a. of this section whenever there are inadequate moneys in the New Jersey Water Supply Authority Round Valley Fund created pursuant to section 7 of P.L.2001, c.82 (C.58:1B-9.2) for the New Jersey Water Supply Authority to replenish the water released from the Round Valley reservoir for the purpose of sustaining water recreational activities at the Spruce Run reservoir.
b. The commissioner is authorized to alter the releases of water from the Spruce Run reservoir or the Round Valley reservoir as provided in subsection a. of section 8 of P.L.1958, c.34 (C.58:22-8) as necessary to ensure the protection of the public health, safety or welfare, or the protection of the environment.
c. The commissioner shall alter the releases of water from the Spruce Run reservoir or the Round Valley reservoir as provided in subsection a. of section 8 of P.L.1958, c.34 (C.58:22-8) whenever there are inadequate moneys in the New Jersey Water Supply Authority Round Valley Fund created pursuant to section 7 of P.L.2001, c.82 (C.58:1B-9.2) for the New Jersey Water Supply Authority to replenish the water released from the Round Valley reservoir for the purpose of sustaining water recreational activities at the Spruce Run reservoir.
(a) The department shall have jurisdiction and control, subject to the provisions hereof, over the use and disposition of all additional water made available for use pursuant to this act. It shall sell such water and rights thereto on just and reasonable terms and conditions as determined by the council and at just, reasonable and equitable rates and charges, to persons, associations, corporations including water supply corporations, municipalities, municipal and district water commissions, and authorities for public potable, industrial, irrigation, and other purposes upon application and after public hearing; provided that before such water may be used for potable purposes, purification and treatment shall be accomplished by the purchaser in a manner satisfactory to the State Department of Health. The council may grant or deny any application made pursuant to this section, and at its discretion, dispense with public hearing when the quantity of water applied for is less than 1/2 million gallons a day. In granting or denying any such application, the council shall be governed by the principles and procedures established and recognized by common law applicable to the diversion and use of water in this State, or as set forth in Title 58 of the Revised Statutes and to which Title this act is a supplement. (b) The division shall cause a notice of every public hearing required to be held pursuant to this section to be given, as hereinafter provided, for the purpose of hearing all persons and municipal corporations or other civil divisions of the State that may be affected thereby. The notice shall specify the time, date and place of the hearing, the time within which objections shall be filed, and shall be published in such newspaper and for such length of time, not exceeding 4 weeks, as the division shall determine. (c) Any person or municipal corporation or the proper authorities of any civil division of the State may file in the office of the division objections to any application to purchase such water. Every such objection shall be filed not later than 5 days prior to the date of hearing and shall particularly specify its ground. (d) The expense of the hearing on any application to purchase such water shall be certified by the division to the applicant, who shall pay the same within 30 days thereafter. L.1958, c. 34, p. 102, s. 9.
The department shall determine and establish, after public hearing, just, reasonable and equitable rates and charges for water sold from any project authorized by this act which shall provide net revenues sufficient to meet annual payments of principal and interest chargeable to such project and incurred by the State under the Water Bond Act, 1958. Such rates shall not be subject to revision or other action by any other department, commission, board or body. The department shall have power to revise such rates from time to time, and any contract for the sale of water shall be subject to the exercise of this power. Differentiation in rates and charges may be made on the basis of quantities of water to be supplied, distances between the facility and point of diversion, the cost in making such water available, the place where the water is to be used and the character of such use, and the like. The aggregate revenue produced by such rates shall, so far as practicable, be limited to costs to the State of operation and maintenance and of debt service and to the reimbursement of the State Treasury of the amount of operating deficits, including annual payments of principal and interest, previously incurred by the State. L.1958, c. 34, p. 104, s. 10.
The department shall have power to investigate and hold hearings to determine existing water rights in riparian owners and the holders of grants and easements for the diversion and use of waters of the south branch of the Raritan river and the Raritan river and may make findings of fact in respect thereto. Nothing in this act shall be construed to diminish or impair the common law rights of riparian owners. L.1958, c. 34, p. 104, s. 11.
For the purposes of this act, the department shall have power:
(a) to acquire in the name of the State of New Jersey, as an agency of the State, by purchase or otherwise on such terms and conditions and in such manner as it shall determine, or by the exercise of the power of eminent domain, any land and other property which it may determine is reasonably necessary for any water supply facility authorized by this act, and any and all rights, title and interest in such land and other property, including public lands, parks, playgrounds, reservations, roads, waters and water rights, owned by or in which any State, county, municipality, or special district, or public body or agency thereof, has any right, title or interest, or parts thereof or rights therein, and any fee simple absolute or any lesser interest in private property, including waters and water rights, and any easements upon, or the benefit of restrictions against abutting property, to preserve and protect any such water supply facility; provided, however, that nothing in this act shall be deemed to authorize the department to acquire by condemnation any property which is part of an existing public water supply system or facility;
(b) to receive and accept from any Federal agency, subject to the approval of the Governor or such other approval as may be required by law, grants for or in aid of the acquisition or construction of the water supply facilities authorized by this act, and to receive and accept aid or contributions from any source, of either money, property, labor, or other things of value to be held, used and applied only for the purposes of this act, and to make and perform such agreements and contracts as may be necessary or convenient in connection with the procuring, acceptance or disposition of such grants and contributions;
(c) to adopt and enforce rules and regulations for the control, use, operation and maintenance of facilities authorized by this act;
(d) to enter on any lands, waters or premises for the purpose of making surveys, borings, soundings, and examinations; (e) to do and perform any acts and things authorized by this act under, through or by means of its officers, agents, and employees, or by contract with any person.
Whenever the power of condemnation is exercised by the department pursuant to this act, the provisions of chapter 1 of Title 20 (Eminent Domain) of the Revised Statutes, as amended and supplemented, shall be applicable and such power of condemnation shall include the condemnation of public as well as privately owned property, except as otherwise provided by this act. Upon the institution of an action to fix the compensation to be paid, or at any time thereafter, the department may file with the Clerk of the Superior Court a declaration of taking, signed by the department, declaring that the possession of 1 or more of the tracts or parcels of property described in the petition is thereby being taken by and for the use of the department. The declaration of taking shall be sufficient if it sets forth (1) a description of each tract or parcel of property to be taken; (2) a statement of the estate or interest in the said property being taken; and (3) a statement of the sum of money estimated by the department to be just compensation for the taking. Upon the filing of said declaration, the department shall deposit with the Clerk of the Superior Court the amount of the estimated compensation stated in said declaration. Upon the filing of the declaration and the depositing with the Clerk of the Superior Court the amount of the estimated compensation as stated in the declaration, the department, without other process or proceedings shall be entitled to the exclusive possession and use of each tract or parcel of property described in the declaration and may forthwith enter into and take possession of said property, it being the intent of this provision that the action to fix the compensation to be paid or any other proceeding relating to the taking of such property or entering therein shall not delay the taking of possession and the use thereof by the department for purposes authorized by this act. The department shall not abandon any condemnation proceeding subsequent to the date upon which it has taken possession of the property as herein provided. The department shall cause notice of the filing of said declaration and the making of said deposit to be served upon each party to the action to fix the compensation to be paid, who resides in this State, either personally or by leaving a copy thereof at his residence, and upon each such party who resides out of the State by mailing copy thereof to him at his residence. In the event that the residence of any such party or the name of such party is unknown, such notice shall be published at least once in the newspaper published or circulating in the county or counties in which the property is located. Such service, mailing or publishing shall be made within 10 days after the filing of the declaration. Upon the application of any party in interest and after notice to other parties in interest, including the department, the Superior Court may direct that the money deposited with the Clerk of the Superior Court or any part thereof be paid forthwith to the person or persons entitled thereto for or on account of the just compensation to be awarded in such action; provided, that each person shall have filed with the Clerk of the Superior Court a consent in writing that, in the event the award in the action shall be less than the amount deposited, the court, after such notice as the court prescribes and a hearing, may determine the liability, if any, for the return of such difference or any part thereof and enter judgment therefor. If the amount of the award as finally determined by the court shall exceed the amount so deposited, the person or persons to whom the award is payable shall be entitled to recover from the department the difference between the amount of the deposit and the amount of the award, with interest at the rate of 6% per annum thereon from the date of the making of the deposit. If the amount of the award shall be less than the amount so deposited, the Clerk of the Superior Court shall return the difference between the amount of the award and the deposit to the department unless the amount of the deposit or any part thereof shall have theretofore been distributed, in which event the court, upon application of the department and notice to all parties interested in the award and affording them an opportunity to be heard, shall enter judgment in favor of the department for such difference against the party or parties liable for the return thereof. L.1958, c. 34, p. 106, s. 13. Amended by L.1962, c. 35, s. 1.
The department shall also have power to make reasonable regulations for the installation, construction, maintenance, repair, renewal, relocation and removal of tracks, pipes, mains, conduits, cables, wires, towers, poles and other equipment and appliances herein called "public utility facilities" of any public utility as defined in section 48:2-13 of the Revised Statutes, in, on, along, over or under any project. Whenever the department shall determine that it is necessary that any such public utility facilities which now are, or hereafter may be, located in, on, along, over or under any project, should be relocated, or should be removed from such project, the public utility owning or operating such facilities shall relocate or remove the same in accordance with the order of the department; provided, however, that the cost and expenses of such relocation or removal, including the cost of installing such facilities in a new location, or new locations, and the cost of any lands, or any rights or interest in lands, and any other rights acquired to accomplish such relocation or removal, less the cost of any lands or any rights or interests in lands or any other rights of the public utility paid to the public utility in connection with the relocation or removal of such property, shall be ascertained and paid by the department as a part of the cost of such project. In case of any such relocation or removal of facilities, as aforesaid, the public utility owning or operating the same, its successors or assigns, may maintain and operate such facilities, with the necessary appurtenances, in the new location or new locations, for as long a period, and upon the same terms and conditions, as it had the right to maintain and operate such facilities in their former location or locations. L.1958, c. 34, p. 106, s. 14.
Any county, municipality or other political subdivision, or any public agency or body of the State of New Jersey, or any other person, notwithstanding any contrary provision of law, is hereby authorized and empowered to sell, lease, lend, grant or convey to the State of New Jersey at the request of the department, or to permit the department at its request to relocate, use, maintain or operate as part of its water supply facility without the necessity for any advertisement, order of court or other action or formality other than the authorizing resolution of the governing body of the county or municipality concerned or the regular and formal action of any authority or other person concerned, any real or personal property owned by it or him, including all or any part of any public highway or water supply facility, which may be necessary or useful and convenient for the purposes of this act and which may be accepted by the department. Any such sale, lease, loan, grant, conveyance or permit may be made with or without consideration and for a specified or an unlimited period of time. The department may enter into and perform any and all agreements with respect to property so accepted by it, including agreements for relocation of any public highway or for the assumption of principal or interest or both of indebtedness of such county, municipality, political subdivision, agency, or body, or person or of any mortgage or lien existing with respect to such property or for the operation and maintenance of such property as part of a water supply facility. L.1958, c. 34, p. 107, s. 15.
The reservoirs constructed pursuant to this act shall be available for public use for recreation, swimming, fishing and boating in such manner and to such extent as shall not impair the availability of the water therein for potable or industrial use or endanger the water supply facility or any of the works or facilities of any purchaser of such water. L.1958, c. 34, p. 108, s. 16.
This act is intended to protect and secure the public health and welfare and shall be liberally construed to effect the purposes thereof. L.1958, c. 34, p. 108, s. 17.
If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications and to this end the provisions of this act are declared to be severable. L.1958, c. 34, p. 108, s. 18.
This act shall take effect immediately, but shall be inoperative unless and until the "New Jersey Water Bond Act, 1958," shall be duly approved by a majority of the legally qualified voters of the State voting on the question of the approval of said act at a general election. L.1958, c. 34, p. 108, s. 19.
The Department of Environmental Protection shall inspect as often as it may deem necessary, the various places within the jurisdiction of the State from which oysters, clams or other shellfish are taken to be distributed or sold for use as food, for the purpose of ascertaining the sanitary conditions of such oyster and clam beds and other places and the fitness of such shellfish therein or taken therefrom for use as food. L.1979, c. 321, s. 1, eff. Jan. 18, 1980.
The department shall immediately condemn any oyster or clam bed or other place from which oysters, clams or other shellfish are or may be taken upon discovering that such place is subject to pollution or to any other condition which may render the oysters, clams or other shellfish in such place or which may be taken therefrom, dangerous to health. L.1979, c. 321, s. 2, eff. Jan. 18, 1980.
The department shall prohibit the taking of oysters, clams or other shellfish from a place which has been condemned by the department pursuant to this act, and shall also prohibit the distribution, sale, offering for sale or having in possession of any such shellfish so taken, without a permit so to take, distribute, sell, offer to sell, or have in possession, first obtained from the department, under such rules and regulations as it shall adopt. A fee of $25.00 shall be charged for any permit so issued. L.1979, c. 321, s. 3, eff. Jan. 18, 1980.
No excremental or other polluting matter shall be discharged into or placed in the waters or placed or suffered to remain upon the banks of any stream or tributary thereof or body of water in which oysters, clams or other shellfish grow or are or may be placed. Nothing in this section shall apply to the discharge of effluents from sewage plants heretofore or hereafter installed in accordance with the requirements of law and the rules and regulations of the department. L.1979, c. 321, s. 5, eff. Jan. 18, 1980.
The department shall have free access to all oyster or clam beds, places of business, buildings and all other places where oysters, clams or other shellfish are grown, kept, stored, held in possession with intent to distribute or sell, or sold, and also to all streams, tributaries thereof and lands adjacent thereto, the waters draining from which may come in contact with such shellfish. The department may make such inspections of such places and take such samples of oysters, clams or other shellfish or other substances as it may deem necessary to carry out the purposes of this act. L.1979, c. 321, s. 7, eff. Jan. 18, 1980.
The department may employ such persons; purchase and maintain such apparatus and supplies, including suitable boats; and, lease appropriate lands or buildings, when it deems it necessary to carry out the provisions of this act and as may be within the limits of funds appropriated or otherwise made available. L.1979, c. 321, s. 8, eff. Jan. 18, 1980.
b. For purposes of this section, a knowing violator shall include, but need not be limited to (1) a person who is the holder of a commercial shellfish license or permit, (2) a person who is the holder of a recreational shellfish license or permit who is in possession of more than the daily recreational shellfish limit, (3) a person without any shellfish license or permit who is in possession of more than the daily recreational shellfish limit, (4) a person who is the holder of a recreational shellfish license or permit who is engaging in shellfish activities with the holder of a commercial shellfish license or permit, or (5) a person without the necessary shellfish license or permit who is engaging in shellfish activities with the holder of a commercial shellfish license or permit.
b. (Deleted by amendment, P.L.1999, c.84).
c. All moneys in the fund shall be disbursed only for the purpose of funding depurated hard and soft clam or hard clam relay programs in Monmouth County, as provided in subsection d. of this section.
d. The Commissioner of Environmental Protection shall disburse annually the moneys in the fund for expenditures made by the Department of Environmental Protection and the Department of Health and Senior Services in the implementation of depurated hard or soft clam or hard clam relay programs in Monmouth County, but in no case in an amount that is greater than the following percentages of the fund available in any one year: the Department of Environmental Protection, 66.7%, of which amount half shall be used by the Division of Fish, Game and Wildlife exclusively for the purpose of enforcing the laws, rules and regulations that relate to the harvesting, transportation and marketing of clams that are part of the clam depuration or relay programs in Monmouth County, and half shall be used exclusively for water quality monitoring and classification programs in Monmouth County; and the Shellfish Program in the Department of Health and Senior Services, 33.3%.
e. On July 15, 1997, and every other year thereafter, the Commissioner of Environmental Protection shall submit in writing to each person participating in clam depuration and relay programs in Monmouth County and the organizations that represent them, an accounting of the fund and a determination of the adequacy of the moneys on deposit in the fund to support the purposes of this act. Prior to July 15, 1997, the persons participating in clam depuration and relay programs in Monmouth County and the organizations that represent them shall determine the method by which they shall review the recommendations of the commissioner and submit a response to the commissioner. On August 15th following the receipt of the accounting of the program, and the determination and recommendations from the commissioner, the persons participating in clam depuration and relay programs in Monmouth County and the organizations that represent them, in accordance with the agreed-upon method of review and response, shall submit their recommendations concerning the determination and recommendations of the commissioner in writing to the commissioner. After reviewing the response, the commissioner shall submit recommendations based on the response to the Governor and the Legislature.
The State aid program created by sections 11 through 20 of this act shall be known as the "Sewerage Facilities Aid Program." L.1979, c. 321, s. 11, eff. Jan. 18, 1980.
It is hereby declared to be public policy of the State of New Jersey to encourage and support, as hereinafter provided, the promotion, planning, development and construction of public sanitary sewerage facilities, including sewage collection, transmission, treatment and disposal works on a regional or multiunit basis. L.1979, c. 321, s. 12, eff. Jan. 18, 1980.
For the purposes of sections 11 through 20 of this act unless the context clearly requires a different meaning:
a. "Local governmental unit" shall mean and include a county, municipality or any public agency established by the State as a regional agency or authority or by a county or a municipality for the purpose of constructing or operating a public sanitary sewerage facility.
b. "Commissioner" shall mean the Commissioner of Environmental Protection.
a. The commissioner may make grants to any two or more local governmental units, acting together on a joint basis; applying therefor:
(1) For the preparation of a feasibility study and report for the future collection, treatment and disposal of sewage in such units; or
(2) For the preparation of a feasibility study and report for the extension of any existing sewerage facility now operated by some or all of the applying units, provided that said extension would contemplate providing sanitary sewerage facilities for at least one local governmental unit in addition to those units now contributing to the existing sewerage facilities, or provided that said extension would contemplate expansion or intensification of the degree of treatment to be provided at existing treatment facilities.
b. The commissioner may make grants to an individual local governmental unit applying therefor for the preparation of a feasibility report and study for the future collection, treatment and disposal of sewage within the unit in the case of a regional agency or authority established by the State or in the case in which the commissioner shall find that it is not practical for the unit to join with other units in the establishment of a multiunit sewerage facility, or in the case where the local governmental unit is formally committed to become a participant of a multiunit sewerage facility.
c. All grants under this section shall be subject to such terms and conditions as shall be prescribed by the commissioner to carry out the purpose of sections 11 through 20 of this act and may be for any amount not in excess of the entire cost of the study and report but such grants shall not be made for minor sewer extensions or for sewer plans for subdivisions and shall not include the preparation of detail design and engineering drawings, specifications and contract documents.
a. Upon application therefor, the commissioner may make loans from the State Sewerage Facilities Loan Fund to any local governmental unit or units which would have been eligible for a grant under the provisions of section 14 of this act for the preparation of preliminary engineering plans and detail design and engineering drawings and specifications and contract documents for the construction of a new or the expansion of an existing sewerage facility for the collection, treatment and disposal of sewage in such unit or units; provided a feasibility study or report upon such facility has been filed with and approved by the commissioner. Such report and study need not have been prepared with a grant provided under the provisions of section 14 of this act but must otherwise satisfy the standards set forth therein.
b. All loans shall be subject to such terms and conditions as shall be prescribed by the commissioner to carry out the purpose of this act provided the entire loan shall be repaid to the State Sewerage Facilities Loan Fund on or before the date when contracts shall have been awarded for the construction of the proposed sewerage works or 3 years from the date of the loan whichever is the earlier. The loans shall be repaid without interest unless construction is not started within 3 years of the date of the loan in which case the loan shall be repaid together with 2% interest per annum thereon.
c. Loans may be made for any amount not in excess of the entire cost of such plans, drawings and documents but shall not be applied to any costs of engineering supervision or inspection during or after the construction of the proposed sewerage works.
There is hereby established a State Sewerage Facilities Loan Fund which shall be administered by the State Treasurer. All funds appropriated or otherwise made available for this purpose, including funds received from the repayment of loans made under the provisions of section 15 of this act, shall be deposited in such depositories as may be selected by the State Treasurer to the credit of the fund. The moneys in the fund, unless otherwise provided by law, shall be held for the purpose of making grants and loans to local units as provided in sections 14 and 15 of this act. Pending their application to the purposes provided in sections 11 through 20 of this act, moneys in the State Sewerage Facilities Loan Fund may be invested and reinvested as other trust funds in the custody of the State Treasurer in the manner provided by law. All earnings received from the investment or deposit of such funds shall be paid into and become a part of the fund. L.1979, c. 321, s. 16, eff. Jan. 18, 1980.
The commissioner shall prescribe the procedures for applying for the grants and loans authorized by sections 11 through 20 of this act and may adopt such rules and regulations as may be necessary to implement the provisions of said sections and to carry out the purpose thereof. L.1979, c. 321, s. 17, eff. Jan. 18, 1980.
a. The commissioner is hereby authorized, subject to the availability of funds, to make grants to any county or municipality, or any combination or agency thereof, or to any State or interstate agency, to assist such governmental units or agencies in the construction of those water pollution control projects as qualify for Federal aid and assistance under the provisions of the "Federal Water Pollution Control Act," and any acts amendatory thereof or supplemental thereto or revisions thereof, and any regulations promulgated pursuant thereto.
b. The State's contribution toward the construction of such project shall not exceed 25% of the cost of that portion of said projects which qualify for Federal assistance.
c. The determination of the relative need, the priority of projects, and the standards of construction shall be consistent with the provisions of the "Federal Water Pollution Control Act," as aforesaid, and sections 11 through 20 of this act.
d. The Commissioner of Environmental Protection shall prescribe the procedures for applying for the grants authorized by this section and may adopt such rules and regulations as may be necessary to implement the provisions of this section and to carry out its purpose.
e. The commissioner is hereby authorized, and with the approval of the Board of Public Utilities as to any public utility which is subject to Title 48 of the Revised Statutes, to condition the award of the grant on the adoption by the grantee of an equitable schedule and classification of rents, rates, fees or other charges for direct or indirect connection with, or the use or services of, the sewerage system. This schedule and classification shall, to the extent practicable, be based on the amount and the characteristics of the sewage and other wastes and other special matters affecting the cost of treatment and disposal thereof, including, but not limited to, chlorine demand, chemical oxygen demand, biochemical oxygen demand, concentration of solids, chemical composition and an allowance for amortization of the sewerage system.
Whenever any local governmental unit, pursuant to an order or in the case of a municipality in a county of the first class, pursuant to an order or written approval of the Department of Environmental Protection and in compliance therewith, has completed installation of a sanitary sewerage collector system and issued bonds or bond anticipation notes to finance such system, and such system is inoperable because the sewerage authority charged with the duty of providing an interceptor system has not yet so provided and therefore no interceptor system is ready to receive the effluent from such municipal collector system through no fault of the local governmental unit, the State shall reimburse such governmental unit for annual interest and debt service costs for the collector system. Such payments shall be made for such period that the collector system remains inoperative and should the system become operable for any portion of a year, payment shall be made for the entire year. That portion of the reimbursement representing principal received at any time on or after July 1, 1982, shall be treated as a loan to be repaid by the local governmental unit to the State over a period of years equal to the number of years during which those loan payments were received by the local governmental unit and in the same amount per year and same order each year as those loan payments were received, but the repayments shall not commence until the first full calendar year after the collector system becomes operative and after all principal and interest on the outstanding obligations of the local governmental unit for the collector system have been repaid. Upon receipt of a written request from a local governmental unit, the Local Finance Board, if compelling reasons are demonstrated, may modify the repayment schedule, provided all repayments are made within the same number of years as required hereinabove. L.1979, c. 321, s. 19, eff. Jan. 18, 1980. Amended by L.1981, c. 400, s. 1, eff. Jan. 6, 1982; L.1981, c. 468, s. 1.
The commissioner shall prescribe the procedures for applying for the grants authorized by sections 11 through 20 of this act and may adopt such rules and regulations as may be necessary to implement the provisions of said sections and to carry out their purposes. L.1979, c. 321, s. 20, eff. Jan. 18, 1980.
a. The Clean Water Council as created by P.L.1967, c. 109 and as continued, transferred and constituted the Clean Water Council in the Department of Environmental Protection is continued in the Department of Environmental Protection. The council shall consist of 18 members, seven of whom shall be the Commissioner of Labor and Industry or a member of the Department of Labor and Industry designated by him, the Commissioner of Community Affairs or a member of the Department of Community Affairs designated by him, the Commissioner of Energy or a member of the Department of Energy designated by him, the Commissioner of Environmental Protection or a member of the Department of Environmental Protection designated by him, the Secretary of Agriculture or a member of the Department of Agriculture designated by him, the Chairman of the Water Policy and Supply Council in the Department of Environmental Protection and the Executive Director of the Delaware River Basin Commission, who shall serve ex officio, five citizens of the State representing the general public and six members to be appointed from persons to be nominated by the organizations hereinafter enumerated, by the Governor.
b. The members of council in office on the effective date of this act shall continue in office for the duration of their respective terms. At least 1 month prior to the expiration of the term of the member chosen from nominees of each organization hereafter enumerated, each such organization shall submit to the Governor a list of three recommended nominees for membership on the council from which list the Governor shall appoint one. If any organization does not submit a list of recommended nominees at any time required by this act, the Governor may appoint a member of his choice. The organizations which shall be entitled to submit recommended nominees are: New Jersey State Chamber of Commerce, New Jersey Business and Industry Association, New Jersey State League of Municipalities, the New Jersey Association of Counties, New Jersey Society of Professional Engineers, Inc. and the New Jersey AFL-CIO.
c. Appointed members shall serve for terms of 4 years. All appointed members shall serve after the expiration of their terms until their respective successors are appointed and shall qualify, and any vacancy occurring in the appointed membership of the council by expiration of term or otherwise, shall be filled in the same manner as the original appointment for the unexpired term only, notwithstanding that the previous incumbent may have held over and continued in office as aforesaid. The Governor may remove any appointed member of the council for cause after a public hearing.
d. Members of the council shall serve without compensation but shall be reimbursed for expenses actually incurred in attending meetings of the council and in the performance of their duties as members thereof. e. The council shall elect annually a chairman and vice-chairman from its own membership.
The Clean Water Council shall:
a. Request from the commissioner such information concerning the Water Pollution Control Program as it may deem necessary;
b. Consider any matter relating to the preservation and improvement of the Water Pollution Control Program and advise the commissioner thereof;
c. From time to time submit to the commissioner any recommendations which it deems necessary for the proper conduct and improvement of the Water Pollution Control Program;
d. Study the Water Pollution Control Program and make its recommendations thereon to the commissioner;
e. Study the regulations promulgated by the department in regard to water pollution control and make its recommendations for their improvement to the commissioner;
f. Study and investigate the state of the art and the technical capabilities and limitations of water pollution control and report their findings and recommendations thereon to the commissioner;
g. Study and investigate the need for programs for the long-range technical support of the water pollution control program and report their findings and recommendations thereon to the commissioner; and
h. Hold public hearings at least once a year in regard to existing water pollution control statutes and regulations and upon the state of the art and technical capabilities and limitations in water pollution control and report its recommendations thereon to the commissioner.
a. There is hereby established a Clean Water Scholarship Intern Program.
b. The commissioner may provide for the payment of room, board, tuition and fees for eligible persons to attend any accredited college or university authorized by the commissioner as a regular student to receive an engineering degree or a degree with a major in the biological, physical or environmental sciences satisfactory to the commissioner until the eligible person satisfactorily completes 4 scholastic years.
c. To be eligible for the Clean Water Scholarship Intern Program a person must:
(1) Be a citizen of the United States and the State of New Jersey;
(2) Be a high school graduate or have an equivalent education;
(3) Have been accepted for admission to the accredited college or university authorized by the commissioner as a regular student and accepted in said college or university to pursue a course of instruction satisfactory to the commissioner;
(4) Contract, with the consent of his parent or legal guardian if he is a minor, with the commissioner or his designated representative, to serve with the Department of Environmental Protection for a period of 3 years following graduation and further, to serve with the Department of Environmental Protection during the regular periods of summer vacation except for such vacation periods as the commissioner shall establish by regulation and provided further that the department shall not be liable to pay wages to said student during said vacation periods.
d. The appointments made by the commissioner hereunder shall be subject to available appropriations and shall be awarded on a competitive basis.
e. The Scholarship Intern Program shall be administered by the commissioner under such regulations as the commissioner shall prescribe.
The commissioner, subject to available appropriations and grants from other sources, may provide within the Department of Environmental Protection for a program of graduate study for eligible persons to attend any accredited graduate program at a college or university in order to further the training of personnel for the purposes of administering this act. Said graduate program shall be administered by the commissioner under such regulations as the commissioner shall prescribe. L.1979, c. 321, s. 24, eff. Jan. 18, 1980.
There is hereby established a Summer Intern Program in Water Pollution Control. L.1979, c. 321, s. 25, eff. Jan. 18, 1980.
The Summer Intern Program shall be administered by the Director of the Division of Water Resources in the Department of Environmental Protection. The director may delegate day-to-day supervision of one or more interns to any officer of the Division of Water Resources or to any officer of a county engineer or a county health office. L.1979, c. 321, s. 26, eff. Jan. 18, 1980.
Interns shall be assigned to projects such as a. making surveys of all places where polluting materials are entering streams, b. providing water sampling and monitoring activities as directed, c. desnagging and removing debris, bushes, boards, tires and other materials, and d. performing any other projects designed to carry out the intent of this act. L.1979, c. 321, s. 27, eff. Jan. 18, 1980.
Any resident of New Jersey who is enrolled full-time as an undergraduate or graduate in any college or university and plans to continue his education after the internship may apply as an intern. An applicant must have completed his freshman year before beginning an internship, and may not serve as an intern after his final year of schooling. L.1979, c. 321, s. 28, eff. Jan. 18, 1980.
The director or a member of his staff delegated by him shall interview each student to corroborate the student's intentions and to verify his prospective capabilities. L.1979, c. 321, s. 29, eff. Jan. 18, 1980.
The director or a member of his staff delegated by him shall evaluate any prospective supervisor of an intern to determine if he is a competent professional who will seriously plan the internship and utilize the intern to help reduce water pollution. L.1979, c. 321, s. 30, eff. Jan. 18, 1980.
Interns shall be chosen from every county and shall be assigned to work on water pollution control projects in every county. L.1979, c. 321, s. 31, eff. Jan. 18, 1980.
Interns shall be paid by the department, based on the regular civil service pay scale for student assistants. L.1979, c. 321, s. 32, eff. Jan. 18, 1980.
This act shall be known and may be cited as the "Sewage Infrastructure Improvement Act." L. 1988, c. 90, s. 1.
The Legislature finds and declares that nonpoint sources of pollution represent a significant environmental problem by contributing greatly to the biological and chemical degradation of coastal and other surface waters of the State; that nonpoint source discharges into stormwater sewers, particularly during and after storms, result in elevated levels of bacteria, which are a cause of 80% to 90% of all beach closings; that combined stormwater and sanitary sewer overflows are another major source of ocean and other surface water pollution; and that an average of 113 million gallons per day of diluted raw sewage flows into the Raritan-Hudson Estuary through approximately 150 authorized outfalls, ultimately degrading the coastal waters of the State. The Legislature declares that such sources of nonpoint and point sources of pollution are a danger to the public and health and safety of the residents of the State; that stormwater sewers and combined stormwater and sewage conveyance facilities discharging wastewaters into the salt waters of the State are major sources of pollution of the State's salt waters; and that public entities responsible for stormwater sewers and combined stormwater and sewage treatment facilities require financial assistance in order to locate and plan for the control these sources of pollution. L. 1988, c. 90, s. 2.
a. Within six months after enactment of this act, the Department of Environmental Protection shall develop standards for the inventory and mapping of stormwater sewers and sanitary sewage lines and, within that period, shall provide these standards to any municipality required to adopt a map pursuant to subsection b. of this section.
b. Within 18 months after enactment of this act, all municipalities with stormwater systems discharging into the salt waters of Monmouth, Ocean, Atlantic and Cape May counties shall adopt a stormwater sewer/sanitary sewage map in accordance with the provisions of this act. The map shall locate, list and number all stormwater sewer and sanitary sewage lines within the geographical boundaries of a municipality, which are part of any stormwater system that discharges into surface waters. The map shall also identify all cross-connections between stormwater and sanitary sewage systems, and indicate whether the cross-connections have received a permit from the Department of Environmental Protection.
The governing body of any municipality required to adopt a map pursuant to this section may contract for the county health department or other county health agency to prepare the map or to monitor the stormwater sewer outfalls in accordance with section 4 of this act.
As used in this act, "salt water" means surface saline waters as defined by the Department of Environmental Protection in regulations adopted pursuant to P.L. 1977, c. 74 (C. 58:10A-1 et seq.) and P.L. 1977, c. 75 (C. 58:11A-1 et seq.).
(1) For priority outfall lines, monitoring shall be conducted twice each year; and
(2) For those outfall lines other than priority outfall lines, monitoring shall be conducted annually.
b. The water tests shall monitor for the presence of fecal coliform or other contaminants that may result from a sewer line break or an improper or illegal connection to a stormwater sewer line. If fecal coliform or other contaminants are found to exceed the standards therefor established pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), the municipality shall identify the person responsible for, and promptly abate or seek the abatement of, the contamination. The results of any water test which monitors for the presence of fecal coliform or other contaminants shall be reported to the Department of Environmental Protection in such manner as shall be required by the department.
c. "Priority outfall line" shall be defined by the Department of Environmental Protection pursuant to regulations adopted by the department.
d. Beginning February 1, 1995, and annually thereafter, the department, pursuant to the regulations developed to define a "priority outfall" pursuant to subsection c. of this section, shall submit a report to the Legislature that lists the priority outfalls. This list shall include the municipality in which the outfall is located, the location of the outfall and the waterbody into which the outfall discharges.
A municipality subject to the provisions of section 3 of this act shall eliminate or cause to be eliminated any unpermitted interconnections of stormwater sewer systems and sanitary sewage systems within the municipality. Any unpermitted interconnection in existence 30 months after enactment of this act shall be subject to the civil penalty provisions of P.L. 1977, c. 74 (C. 58:10A-1 et seq.). Municipalities that fail to take appropriate measures to eliminate, or cause to be eliminated, unpermitted cross-connections after receiving written or constructive notice thereof, shall also be subject to the civil penalty provisions of P.L. 1977, c. 74. An action to enforce the civil penalty provisions of P.L. 1977, c. 74 may be brought by the department, the municipality, or other public entity controlling or operating the stormwater sewer system with an unpermitted interconnection. The action shall be in the name of the public entity bringing the action. Municipalities within the counties of Monmouth, Ocean, Atlantic, and Cape May shall also take appropriate measures to abate nonpoint sources of pollution directly entering salt waters. L. 1988, c. 90, s. 5.
Within 30 months after enactment of this act, any public entity operating a combined stormwater sewer and sanitary sewage system shall provide abatement measures approved by the department at any combined sewer overflow point for which a permit is required pursuant to P.L. 1977, c. 74 (C. 58:10A-1 et seq.). Any public entity that fails to provide, in accordance with standards established therefor by the department, appropriate abatement measures approved by the department at a combined sewer overflow point after the expiration of the 30 month period shall be subject to the penalty provisions of P.L. 1977, c. 74 (C. 58:10A-1 et seq.), and to any other enforcement action that may be appropriate. L. 1988, c. 90, s. 6.
a. There is established in the Department of Environmental Protection a non-lapsing fund, to be known as the "Municipal Stormwater Management and Combined Sewer Overflow Abatement Assistance Fund." There shall be deposited in the fund, moneys appropriated pursuant to this act, any other appropriations as may be made thereto by law, and any interest earned thereon. Upon disbursement of all monies in the fund, the fund shall terminate.
b. The department is authorized, pursuant to the provisions of this act, to provide grants from the fund to municipalities for the inventory and mapping of stormwater systems pursuant to subsection b. of section 3 of this act and for the planning and design necessary to eliminate unpermitted interconnections of stormwater sewer systems and sanitary sewage systems and to abate nonpoint sources of pollution directly entering salt waters pursuant to section 5 of this act. For the purposes of this subsection, planning may include the costs of monitoring water quality at outfall lines for stormwater sewers.
c. The department is authorized, pursuant to the provisions of this act, to provide grants from the fund to municipalities and other public entities controlling or operating combined stormwater sewer and sanitary sewage systems for the planning and design of abatement measures at any combined sewer overflow point.
d. Prior to the award of any grant, the department shall notify the presiding officers of both houses of the Legislature in writing of the applications received, the grant recipients, the amounts requested, amounts to be granted and the purposes for which the grants shall be used.
Any municipality or other public entity eligible for a grant pursuant to section 7 may apply to the department for up to 90% of the total inventory, mapping, planning, and design costs to be incurred thereby, as applicable. The municipality or other public entity shall include in its application, the purposes for which the grant shall be used, the method of accomplishing those purposes, a statement that the municipality or public entity shall provide 10% of the total cost, any other information the department may require, and if applicable, a statement that the municipality will conform with the department standards for the stormwater system inventory and map. The department shall review and approve an application if the amount requested is reasonable for the work to be accomplished, the municipality or public entity is providing the required match and meets any other department requirements, and, if applicable, the municipality has agreed to conform with the department's inventory and mapping standards. Any application disapproved may be amended and resubmitted to the department. L. 1988, c. 90, s. 8.
a. The Commissioner of the Department of Environmental Protection shall develop a priority system for stormwater sewer system pollution elimination and abatement construction projects and shall establish the ranking criteria and future funding policies for the construction of projects. The commissioner shall, based upon the inventory, maps, plans and designs of grant recipients, develop a stormwater sewer system construction project priority list for future funding of stormwater sewer system projects.
b. The Commissioner of the Department of Environmental Protection shall develop a priority system for combined sewer system pollution elimination and abatement construction projects and shall establish the ranking criteria and future funding policies for the construction of projects. The commissioner shall, based upon the plans and designs of grant recipients, develop a combined sewer system construction project priority list for future funding of combined sewer system projects.
The Commissioner of the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), such rules and regulations as may be necessary or appropriate for the implementation of this act. L. 1988, c. 90, s. 10.
Any stormwater collection system constructed by the Department of Transportation or any other state agency that may discharge stormwater into surface waters, shall be designed to abate, to the greatest extent practicable and feasible, any adverse environmental impact on the quality of the surface water into which the stormwater may be discharged. L. 1988, c. 90, s. 11.
This act shall be known and may be cited as the "New Jersey Water Supply Privatization Act." L. 1985, c. 37, s. 1, eff. Feb. 1, 1985.
The Legislature finds that the construction, rehabilitation, operation, and maintenance of modern and efficient water filtration facilities are essential to protecting and improving the State's water quality; that many of the water filtration systems in New Jersey must be replaced or upgraded if an inexorable decline in water quality is to be avoided during the coming decades; that the citizens of this State, in recognition of the crucial role the construction of new and the upgrading of existing water supply facilities play in maintaining and augmenting the natural water resources of the State, and with an understanding that the cost of financing and constructing these systems is beyond the limited financial resource capabilities of local governments and authorities and must be borne by the bonding authority of the State and repaid, in part, through a system of water supply user charges, approved the enactment of the "Water Supply Bond Act of 1981" (P.L. 1981, c. 261); that the water filtration needs of the State are so great that the limited funds allocated for this purpose from the "Water Supply Fund" established by that 1981 bond act are insufficient; that given this inadequate present level of State funding, alternative methods of financing the construction of new or the rehabilitation of antiquated or inadequate existing water filtration systems must be developed and encouraged; that one alternative method of financing these necessary facilities available to local government units consists of contracting with private-sector firms for the financing, construction and operation of these systems; and that for some local government units, contracting for the provision of water supply services, if done in such a way as to protect the interests of water users and to conform with environmentally sound water quality standards will constitute an appropriate method of securing these needed water filtration systems. The Legislature therefore determines that it is in the public interest to establish a comprehensive procedure designed to authorize local government units to contract with private firms for the construction of water filtration systems and the provision of water supply services. L. 1985, c. 37, s. 2, eff. Feb. 1, 1985.
As used in this act:
a. "Contracting unit" means a county, district water supply commission, municipality, municipal or county utilities authority, municipal water district, joint meeting or any other political subdivision of the State authorized pursuant to law to operate or maintain a public water supply system or to construct, rehabilitate, operate, or maintain water supply facilities or otherwise provide water for human consumption;
b. "Department" means the Department of Environmental Protection;
c. "Division" means the Division of Local Government Services in the Department of Community Affairs;
d. "Vendor" means any person financially, technically, and administratively capable of financing, planning, designing, constructing, operating, or maintaining, or any combination thereof, a water filtration system, water supply facilities, or of providing water supply services to a local government unit under the terms of a contract awarded pursuant to the provisions of this act;
e. "Water filtration system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed, rehabilitated, or operated for the collection, impoundment, storage, improvement, filtration, or other treatment of drinking water for the purposes of purifying and enhancing water quality and insuring its potability prior to the distribution of the drinking water in the general public for human consumption, including plants and works, and other personal property and appurtenances necessary for their use or operation;
f. "Water supply facilities" means and refers to the real property and the plants, structures, interconnections between existing water supply facilities, machinery and equipment and other property, real, personal and mixed, acquired, constructed or operated, or to be acquired, constructed or operated, in whole or in part by or on behalf of a political subdivision of the State or any agency thereof, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, or of conserving existing water resources, and any and all appurtenances necessary, useful or convenient for the collecting, impounding, storing, improving, treating, filtering, conserving or transmitting of water, and for the preservation and protection of these resources and facilities and providing for the conservation and development of future water supply resources;
g. "Water supply services" means services provided by a water supply facility.
The provisions of any other law, or rules and regulations adopted pursuant thereto to the contrary notwithstanding, any contracting unit may enter into a contract for a period not to exceed 40 years, with a vendor for the financing, designing, construction, operation, or maintenance, or any combination thereof, of a water supply facility, including a water filtration system, or for water supply services, pursuant to the provisions of this act. L. 1985, c. 37, s. 4, eff. Feb. 1, 1985.
Upon submitting the notices of intent pursuant to section 5 of this act, a contracting unit may issue a request for qualifications of vendors interested in entering into a contract with the contracting unit for the provision of water supply services. The request for qualifications shall include a general description of the water supply services required by the contracting unit, the minimum acceptable qualifications to be possessed by a vendor proposing to enter into a contract for the provision of these services, and the date by which vendors must submit their qualifications. In addition to all other factors bearing on qualifications, the contracting unit shall consider the reputation and experience of the vendor, and may consider information which might result in debarment or suspension of a vendor if the vendor has been debarred or suspended by a State agency. The request for qualifications shall be published in at least one appropriate professional or trade journal, and in at least one newspaper of general circulation in the jurisdiction which would be served under the terms of the proposed contract. L. 1985, c. 37, s. 6, eff. Feb. 1, 1985.
After reviewing the qualifications submitted by vendors pursuant to section 6 of this act, a contracting unit shall establish a list of all vendors responding to the request for qualifications, and shall designate the vendor or vendors which the contracting unit has determined to be qualified to provide the water supply services described in the request for qualifications. This list shall include a statement setting forth the criteria applied by the contracting unit in selecting qualified vendors, and shall be published in the same publications in which the requests for qualifications were published pursuant to section 6 of this act. L. 1985, c. 37, s. 7, eff. Feb. 1, 1985.
Upon selecting the qualified vendors pursuant to section 7 of this act, a contracting unit shall transmit a request for proposals to the qualified vendors, which shall include a detailed description of the water supply facility and services required, the format and procedure to be followed in submitting proposals, the specific information which the vendor must provide in the proposal, a statement setting forth the relative importance of factors, including cost, which the contracting unit will consider in evaluating a proposal submitted by a qualified vendor, and any other information which the contracting unit deems appropriate. The request for proposals shall include the date and time of day by which, and the place at which, the proposals shall be submitted to the contracting unit. The contracting unit may extend the deadline for submission of proposals, but this extension shall apply to all qualified vendors, who shall be provided with simultaneous written notification of this extension. L. 1985, c. 37, s. 8, eff. Feb. 1, 1985.
A contracting unit shall review proposals submitted by vendors pursuant to section 8 of this act in such a manner as to avoid disclosure of the contents of any proposal to vendors submitting competing proposals. If provided for in the request for proposals, the contracting unit may conduct discussions with qualified vendors who have submitted proposals for the purpose of clarifying any information submitted in the proposal, or assuring that the vendor fully understood and responded to the requirements set forth in the request for proposals. If, as a result of these discussions, the contracting unit decides to revise the request for proposals, it shall immediately notify in writing each qualified vendor which has submitted a proposal of any such revision or revisions to the request for proposals. In the event of any revision to the request for proposals, a qualified vendor shall be permitted to submit revisions to its proposal. L. 1985, c. 37, s. 9, eff. Feb. 1, 1985.
After reviewing the proposals submitted by qualified vendors pursuant to section 9 of this act, a contracting unit shall designate in writing the selected vendor or vendors. This designation shall include a list of the qualified vendors submitting proposals, the basis on which the selected vendor or vendors was chosen, and a finding that the proposal submitted by the selected vendor or vendors constitutes the proposal most advantageous to the jurisdiction to be served under the terms of the proposal, based upon the evaluation factors included in the request for proposals. This designation shall be published in at least one newspaper in general circulation in the jurisdiction to be served under the terms of the proposaL. L. 1985, c. 37, s. 10, eff. Feb. 1, 1985.
b. If the Division of Rate Counsel represents the public interest at a public hearing or hearings conducted pursuant to this section, the Division of Rate Counsel shall be entitled to assess the vendor for costs incurred in this representation in the manner provided in section 20 of P.L.1974, c.27 (C.52:27E-19). The basis of the assessment shall be the prospective first year's revenue realized by the vendor from the provision of the water supply services pursuant to the terms of the proposed contract.
c. If a contract awarded pursuant to the provisions of this act is renegotiated, the contracting unit shall conduct a public hearing on the renegotiated contract pursuant to the provisions of this section.
a. The department, within 60 days of receipt of a proposed contract submitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the department approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract will meet appropriate environmental and water quality standards, and that it is consistent with the State primary drinking water regulations or requirements for the jurisdiction to be served under the terms of the proposed contract pursuant to the "Safe Drinking Water Act," P.L. 1977, c. 224 (C. 58:12A-1 et seq.). If the department conditionally approves a proposed contract, it shall state in writing the revisions which must be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing. After revising the contract, the contracting unit may resubmit the proposed contract to the department for approval.
b. The division, within 60 days of receipt of a proposed contract transmitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the division approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract complies with the provisions of section 15 of this act, and that the proposed contract is compatible with the fiscal and financial capabilities of the contracting unit. If the division conditionally approves the proposed contract, it shall state in writing the revisions which must be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing. After revising the proposed contract, the contracting unit may resubmit the proposed contract to the division for approval.
c. If the contracting unit is subject to the jurisdiction of the Board of Public Utilities, the board within 60 days of receipt of a proposed contract submitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract if the board finds the proposed contract to be in the public interest. If the Board of Public Utilities conditionally approves the proposed contract because the contract is not in the public interest, the board shall notify the contracting unit in writing of the changes needed in the proposed contract in order for it to be in the public interest, and shall inform the contracting unit if the revisions to be made warrant a public hearing. After revising the proposed contract, the contracting unit may resubmit the proposed contract to the board for approval. In reviewing and approving the proposed contract, the Board of Public Utilities shall not determine a rate base for, or otherwise regulate the tariffs or return of, the proposed water supply facility or the provision of water supply services. The board shall not, thereafter, conduct any further review of the contract.
d. Notwithstanding the provisions of subsection c. of this section, all parties to any proposed contract may request the Board of Public Utilities to determine a rate base for the proposed water supply facility or the provision of water supply services, in which case the board may make that determination and the terms of any proposed contract so approved shall be subject to the continuing jurisdiction of the board.
A contracting unit may award a contract negotiated pursuant to the provisions of this act to a vendor only after the department, the Board of Public Utilities, and the division have approved the proposed contract pursuant to section 13 of this act. L. 1985, c. 37, s. 14, eff. Feb. 1, 1985.
Any contract for the provision of water supply services negotiated and awarded to a vendor by a contracting unit pursuant to this act, or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.), shall include, but shall not be limited to, provisions concerning:
a. The allocation of the risks of financing and constructing a water supply facility including delays in completion of the construction of the system, construction and financing cost overruns and increased costs resulting from change orders, construction changes required by revisions in applicable laws, rules, or regulations, failure of the system to achieve its required operating performance or efficiency, changes in tax benefits, and the need for equity contributions in addition to those provided for in the contract;
b. The allocation of the risks of operating and maintaining a water supply facility, including excessive or nonscheduled periods of inoperation or technical failure, excess labor and materials costs due to underestimation, changes in operating procedures required by revisions in applicable laws, rules, or regulations, changes in the quantity or composition of water delivered for filtration or treatment, excessive operation or maintenance costs due to poor management, and increased costs of distribution of the water resulting from costs associated with filtration or treatment;
c. The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract;
d. The defaulting and termination of the contract;
e. The periodic preparation by the vendor of an operating performance report and an audited balance statement of the water supply facility, which shall be submitted to the contracting unit, the department and the division;
f. The intervals at which the contract shall be renegotiated;
g. The employment of current employees of the contracting unit whose positions or employment will be affected by the terms of the contract; and
h. The formulas to be used to determine the charges, rates, or fees to be charged for the water supply services, and the methodology or methodologies used to develop these formulas.
A contracting unit which has awarded a contract for the provision of water supply services to a vendor pursuant to this act or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.) may lease to the vendor, for a fair market price, the property to be used as a site for a water supply facility, the provisions of any other laws or rules and regulations adopted pursuant thereto to the contrary notwithstanding. L. 1985, c. 37, s. 16, eff. Feb. 1, 1985.
Any contracting unit which, prior to the effective date of this act, has issued a request for qualifications and a request for proposals from vendors for the provision of water supply services, or has initiated negotiations with a vendor for the provision of water supply services, may petition the department and the Board of Public Utilities for certification as being substantially and materially in compliance with the provisions of this act, and, upon receiving this certification, may award a contract for the provision of water supply services pursuant to the provisions of this act. L. 1985, c. 37, s. 17, eff. Feb. 1, 1985.
The department, the Board of Public Utilities, and the division may adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), rules and regulations necessary to carry out their respective responsibilities under this act.
"Board" means the New Jersey Board of Public Utilities.
"Department" means the New Jersey Department of Environmental Protection.
"Division" means the Local Finance Board within the Division of Local Government Services in the Department of Community Affairs.
"Governing body" means the board of chosen freeholders in the case of the county; the board of chosen freeholders and the county executive, the county supervisor or the county manager, as appropriate, in the case of a county organized pursuant to the provisions of the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.); the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality, in the case of a municipality; and the decision-making body of an authority or commission.
"Contract" means a long-term written agreement wherein a private firm agrees to provide water supply services for a public entity and wherein the private firm agrees to provide, during the term of the contract, capital expenditures on behalf of the public entity's water supply facilities, which expenditures are set forth in the contract.
"Private firm" means any privately or publicly held company qualified to do business in the State of New Jersey that is financially, technically, and administratively capable of providing water supply services to a public entity under the terms of a contract entered into pursuant to P.L.1995, c.101 (C.58:26-19 et al.).
"Proposal document" means the document prepared by or on behalf of a public entity describing the water supply services that the public entity is considering having provided by a private firm pursuant to a contract. The proposal document shall include specific minimum qualifications that a private firm shall meet, as well as the criteria that will be used by a public entity to evaluate a proposal submitted by a private firm.
"Public entity" means a county, a municipality, a municipal or county authority or any commission or other political subdivision of the State, or any two or more counties, municipalities, municipal or county utility authorities or any commission or other political subdivision of the State, acting jointly, that are authorized by law to operate or maintain a public water supply system or to construct, rehabilitate, operate, or maintain water supply facilities or otherwise provide water for human consumption.
"Water supply facility" means the plants, structures, or other real or personal property acquired, constructed or operated, or to be acquired, constructed or operated, by or on behalf of a public entity for the collection, impoundment, storage, improvement, treatment, filtration, conservation, protection, transmission or distribution of water.
"Water supply services" means the financing, designing, construction, improvement, operation, maintenance, administration, or any combination thereof, of a water supply facility which services are provided pursuant to P.L.1995, c.101 (C.58:26-19 et al.).
b. The public notice required under subsection a. of this section shall describe the type of services desired and provide the name, address and phone number of the person who can provide additional information and a proposal document to an interested party. The notice shall specify a deadline, that shall be not less than 30 days from the date of the publication of the notice for the submission of proposals by private firms to the public entity. The public entity may at any time revise the proposal document and each private firm that received a proposal document shall be provided with the revised proposal document.
c. The public entity shall conduct a review of the proposals submitted by private firms to determine which proposals meet the minimum qualifications and standards. The review shall be conducted in a manner that avoids disclosure of the contents of a proposal to any private firm submitting a competing proposal. The public entity may conduct discussions with a private firm submitting a qualified proposal for the purpose of clarifying the information submitted in the proposal. The public entity may at any time revise its proposal document after the review of the submitted proposals if it notifies simultaneously and in writing each private firm that submitted a proposal of the revision and provides a uniform time within which a firm may submit a revised proposal for review.
d. A public entity shall select one qualified proposal from among those submitted. The public entity shall negotiate a contract with the private firm that submitted the selected proposal. If the public entity is unable to negotiate a satisfactory contract with the selected private firm, it may select another qualified proposal from among those submitted and proceed to negotiate a contract with the private firm that submitted the proposal. The public entity shall set forth in writing the reasons for the selection of the qualified proposal submitted by the private firm with which the public entity has negotiated a proposed contract and shall make this document available to the public along with the proposed contract upon request and during the public hearing conducted pursuant to section 6 of P.L.1995, c.101 (C.58:26-24).
e. A contract entered into pursuant to P.L.1995, c.101 (C.58:26-19 et al.) shall include provisions addressing the following:
(1) The charges, rates, fees or formulas to be used to determine the charges, rates, or fees to be charged by the public entity for the water supply services to be provided;
(2) The allocation of the risks of financing and constructing planned capital additions or upgrades to existing water supply facilities;
(3) The allocation of the risks of operating and maintaining the water supply facility;
(4) The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract;
(5) The defaulting and termination of the contract;
(6) The employment of current employees of the public entity whose positions or employment will be affected by the terms of the contract;
(7) The private firm's authority and the extent, or the procedures for the use, of that authority to initiate, negotiate and finalize the terms for a bulk sale of surplus water. The contract shall either grant the private firm such authority or specifically state that the firm is denied that authority. Nothing in P.L.1995, c.101 (C.58:26-19 et al.) shall be construed to authorize a public entity that enters into a contract pursuant to P.L.1995, c.101 (C.58:26-19 et al.) to provide for the bulk sale, lease or transfer of water if the water being transferred, leased or sold has been supplied to the public entity either by the New Jersey Water Supply Authority or by the North Jersey District Water Supply Commission, unless the authority pursuant to P.L.1981, c.293 (C.58:1B-1 et seq.) or the district pursuant to R.S.58:5-1 et seq., as appropriate, has agreed to the bulk sale, lease or transfer;
(8) The requirements for the provision of a performance bond by the private firm, if so required by the public entity; and
(9) The allocation of responsibility for compliance with the provisions of the "Water Quality Accountability Act," P.L.2017, c.133 (C.58:31-1 et seq.), if applicable .
A contract may contain any other terms and conditions that have been negotiated by the public entity and the private firm.
f. If a dispute over contract compliance, performance or termination cannot be resolved by the public entity and the private firm pursuant to the procedures set forth in the contract, either party to the contract may file with the Superior Court which has appropriate jurisdiction a request for an order either to terminate the contract based on the reasons stated in the request or for an order for other appropriate relief to the dispute. The court may take such action as it may deem necessary to facilitate the expeditious resolution of the dispute and an expeditious response to the request, including ordering the parties to undertake a dispute resolution or mediation process. The court shall use, as it deems necessary, the services of a financial expert in the area of water supply service contracts in its analysis of the contract and the issues before it. Within 90 days after the filing of a request, the court shall either grant the request or deny the request. If the request is granted, the court shall order such appropriate relief measures or remedies as it deems appropriate and necessary.
g. A public entity that has negotiated a contract with a private firm pursuant to P.L.1995, c.101 (C.58:26-19 et al.) shall obtain the written opinion of bond counsel as to effect of the contract on the tax exempt status of existing and future financing instruments executed by the public entity given the terms of the contract and the federal laws or regulations concerning this matter.
h. If a public entity entering a contract consists of multiple municipalities, a concession fee or other monetary benefit paid by a private firm as a result of the contract shall be paid directly to the municipalities constituting that public entity. Any concession fee or monetary benefit paid by a private firm to a public entity shall be used for the purpose of reducing or off-setting property taxes.
b. The public entity shall provide at least 14 days' prior notice of the public hearing by publication in at least one newspaper of general circulation in the jurisdiction or service area of the public entity to be served under the terms of the proposed contract. The publication shall include notice of the date, time and place of the public hearing, notice of the place at which copies of the proposed contract will be available for public inspection, and the times during which such inspection will be permitted. The notice shall specifically state whether any concession fee or monetary benefit will be paid by a private firm to the public entity as a result of the contract for water supply services, the monetary amount of the fee or benefit and the potential impact of the fee or benefit on the charges, rates or fees which will be paid for the supply of water by water users in the jurisdiction or service area that will receive the water supply services pursuant to the terms of the contract.
c. At the public hearing, the public entity shall explain the terms and conditions of the proposed contract and shall answer questions raised by prospective consumers and other interested parties. The public entity shall explain during the hearing the charges, rates or fees that will or may be charged by the public entity for the supply of water as a result of the proposed contract. In addition, the entity shall explain any concession fee or monetary benefit to be paid by a private firm to the public entity as a result of the contract for water supply services, the monetary amount of the fee or benefit and the potential impact of the fee or benefit on the charges, rates or fees which will be paid for the supply of water by water users in the jurisdiction or service area that will receive the water supply services pursuant to the terms of the contract.
d. The public entity shall produce a verbatim record of the public hearing. The record of the public hearing shall be kept open for a period of seven days following the conclusion of the hearing, during which time interested parties may submit written statements to be included in the hearing report. The public entity shall prepare a written hearing report, which shall include a copy of the proposed contract, a copy of the statement setting forth the public entity's reasons for the selection of the proposal submitted by the private firm with which the entity has negotiated a contract, the verbatim record of the public hearing, written statements submitted by interested parties, a copy of the bond counsel's written opinion required pursuant to subsection g. of section 5 of P.L.1995, c.101 (C.58:26-23) and a statement prepared by the public entity summarizing the major issues raised at the public hearing and the public entity's specific responses to those issues. The public entity shall make copies of the hearing report available to interested parties upon request at a cost not to exceed the actual cost of printing or copying.
e. The governing body of a public entity that has negotiated the proposed contract shall adopt an ordinance or a resolution, as appropriate, or parallel ordinances or resolutions, as the case may be, if there is more than one governing body involved, approving the proposed contract. The ordinance or resolution may be introduced at the first meeting of the governing body of the public entity held after the public hearing on the proposed contract, and shall acknowledge that the agreement needs to be approved pursuant to section 7 of P.L.1995, c.101 (C.58:26-25).
f. Within 30 days after the close of a public hearing on a proposed contract held pursuant to subsection a. of this section and upon at least 10 days' prior written notice, the public entity shall submit pursuant to section 7 of P.L.1995, c.101 (C.58:26-25) an application for approval to the division and the board and shall submit the hearing report to the department for review. The board and division shall specify the form of the application to be submitted.
b. If either the board or division conditionally approves the application, the board or division shall state in writing the revision to the proposed contract that is necessary in order for it to be approved. If the board or division determines that the required revision is substantial, the public entity shall hold a public hearing on the revision and adhere to the provisions of section 6 of P.L.1995, c.101 (C.58:26-24) in so doing. A substantial revision shall be a change that results in an increase in the charges, rates or fees of the private firm or that materially changes other terms and conditions of the contract. The proposed revision to the contract shall be submitted to the board, division and department 15 days prior to the date of the public hearing. If the board or division determines that the required revision in the conditional approval is not substantial, the public entity shall submit the proposed revision to the contract to the board and the division for approval and to the department for review. The revision shall be approved if found to be consistent with the conditions set forth in the conditional approval, or disapproved with a written explanation as to why the revision is not consistent, within 15 days after the next public meeting of the board or division.
c. In its review of a contract, the board shall apply the following criteria in determining whether to approve the contract:
(1) The private firm entering into the contract has the financial capacity and technical and administrative experience to ensure continuity of service over the term of the contract and that the standards and requirements contained in the application documents concerning the financial, technical and administrative capacity of the private firm are necessary and sufficient to protect the public interest.
(2) The terms of the contract are not unreasonable. In determining whether the terms of the contract are not unreasonable, the board shall review the fees and charges to be charged or assessed under the contract to determine that they are reasonable to the public entity, taking into consideration all of the obligations undertaken by the private firm and all the benefits obtained by the public entity. In making this determination, the board shall not use the traditional rate based rate of return methodology.
(3) The franchise customers of a public utility participating in a contract are protected from the risks of the proposed contract and that they are not subsidizing the contract. If a private firm is not a public utility, the board shall ensure that under the terms of the proposed contract the users of water outside of the jurisdiction or service area that will receive water supply services under the contract are also protected from the risks of the contract and that water users outside the jurisdiction or service area are not subsidizing the contract through increased charges, rates or fees for the supply of water.
(4) The contract contains the provisions required by paragraphs (1), (2) and (6) of subsection e. of section 5 of P.L.1995, c.101 (C.58:26-23).
Upon approval of a contract as proposed or as revised in response to a conditional approval, the jurisdiction of the board over the contract shall terminate until or unless the contract is amended to change the formula or other basis of determining charges contained therein.
d. In its review of a contract, the division shall apply the following criteria in determining whether to approve the contract:
(1) The terms of the proposed contract do not materially impair the ability of the public entity to punctually pay principal and interest due on its outstanding indebtedness and to supply other essential public improvements and services.
(2) A concession fee or other monetary benefit paid by a private firm as a result of the contract is paid directly to the municipalities constituting that public entity, if a public entity consisting of multiple municipalities has entered into a contract. Any concession fee or monetary benefit paid by a private firm to a public entity is used for the purpose of reducing or off-setting property taxes.
(3) The contract contains the provisions required by paragraphs (3), (4), (5), (7), (8), and (9) of subsection e. of section 5 of P.L.1995, c.101 (C.58:26-23).
The division shall also review and specifically approve any contract provision pursuant to which a public entity will or may execute a financing instrument for the purposes set forth in the contract.
e. The board or division may provide the public entity with any non-binding comments or advice during or after the review of the application as the board or division deem appropriate.
f. The board or division shall assess and the applicant shall pay a fee equal to the cost incurred by the board or division for an analysis of an application by an independent person who has expertise in the area of water supply services if during the review of an application the board or division determine that such an analysis is required and a person with the required expertise is not readily available from within any executive department of the State government.
g. If the public entity and private firm would like to amend a contract after approval of an application by the board and division, the public entity shall submit proposed amendments to the board and division for approval and to the department for review. At the next public meeting of the board and of the division after receipt of proposed amendments, the board and the division shall determine whether the proposed amendments are substantial. If the amendments are substantial in nature as determined by either the board or the division, the public entity shall conduct a hearing pursuant to section 6 of P.L.1995, c.101 (C.58:26-24). Within 60 days of the receipt of proposed amendments that are not determined to be substantial, or within 60 days of the receipt of an application for approval of proposed amendments that are determined to be substantial, the board and division shall approve or conditionally approve the amendments in accordance with the applicable procedures established for approval of an original contract pursuant to this section .
This act shall be known and may be cited as the "New Jersey Wastewater Treatment Privatization Act." L. 1985, c. 72, s. 1, eff. March 11, 1985.
The Legislature finds and declares that protecting the ground and surface water of the State from pollution is vital to the health and general welfare of the citizens of New Jersey; that the construction, rehabilitation, operation, and maintenance of modern and efficient sewer systems and wastewater treatment plants are essential to protecting and improving the State's water quality; that in addition to protecting and improving water quality, adequate wastewater treatment systems are essential to economic growth and development; that many of the wastewater treatment systems in New Jersey must be replaced or upgraded if an inexorable decline in water quality is to be avoided during the coming decades; that the United States Congress, in recognition of the crucial role wastewater treatment systems and plants play in maintaining and improving water quality, and with an understanding that the cost of financing and constructing these systems must be borne by local governments and authorities with limited sources of revenues, established in the "Clean Water Act" a program to provide local governments with grants for constructing these systems; that during the last several years the amount of federal grant money available to states and local governments for assistance in constructing and improving wastewater treatment systems has sharply diminished; that the current level of federal grant funding is inadequate to meet the cost of upgrading the State's wastewater treatment capacity to comply with State water quality standards; that given this inadequate present level of federal grant funding, alternative methods of financing the construction, operation, and improvement of wastewater treatment systems must be developed and encouraged; that one alternative method of financing necessary wastewater treatment systems available to local government units consists of contracting with private-sector firms for the financing, construction and operation of these systems; and that for some local government units, contracting for the provision of wastewater treatment services, if done in such a way as to protect the interests of consumers and to conform with environmental standards, will constitute an appropriate method of securing these needed wastewater treatment systems. The Legislature therefore determines that it is in the public interest to establish a comprehensive procedure designed to authorize local government units to contract with private firms for the provision of wastewater treatment services. L. 1985, c. 72, s. 2, eff. March 11, 1985.
As used in this act:
a. "Contracting unit" means a county, municipality, municipal or county sewerage or utility authority, municipal sewerage district, joint meeting or any other political subdivision of the State authorized pursuant to law to construct wastewater treatment systems or provide wastewater treatment services.
b. "Department" means the Department of Environmental Protection.
c. "Division" means the Division of Local Government Services in the Department of Community Affairs.
d. "Vendor" means any person financially, technically, and administratively capable of financing, planning, designing, constructing, operating, or maintaining, or any combination thereof, a wastewater treatment system, or of providing wastewater treatment services to a local government unit under the terms of a contract awarded pursuant to the provisions of this act.
e. "Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewerage, storm water runoff, or any combination thereof, or other liquid residue discharged or collected into a sewer system or storm water system, or any combination thereof.
f. "Wastewater treatment system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed or operated for the storage, collection, reduction, recycling, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, facilities, plants and works, connections, outfall sewers, interceptors, trunk lines, and other personal property and appurtenances necessary for their use or operation.
g. "Wastewater treatment services" means services provided by a wastewater treatment system.
The provisions of any other law, or rules and regulations adopted pursuant thereto to the contrary notwithstanding, any contracting unit may enter into a contract with a vendor for the financing, designing, construction, operation, or maintenance, or any combination thereof, of a wastewater treatment system, or for wastewater treatment services, pursuant to the provisions of this act. L. 1985, c. 72, s. 4, eff. March 11, 1985.
Upon submitting the notices of intent pursuant to section 5 of this act, a contracting unit may issue a request for qualifications of vendors interested in entering into a contract with the contracting unit for the provision of wastewater treatment services. The request for qualifications shall include a general description of the wastewater treatment services required by the contracting unit, the minimum acceptable qualifications to be possessed by a vendor proposing to enter into a contract for the provision of these services, and the date by which vendors must submit their qualifications. In addition to all other factors bearing on qualifications, the contracting unit shall consider the reputation and experience of the vendor, and may consider information which might result in debarment or suspension of a vendor from State contracting and may disqualify a vendor if the vendor has been debarred or suspended by a State agency. The request for qualifications shall be published in at least one appropriate professional or trade journal, and in at least one newspaper of general circulation in the jurisdiction which would be served under the terms of the proposed contract. L. 1985, c. 72, s. 6, eff. March 11, 1985.
After reviewing the qualifications submitted by vendors pursuant to section 6 of this act, a contracting unit shall establish a list of all vendors responding to the request for qualifications, and shall designate the vendor or vendors which the contracting unit has determined to be qualified to provide the wastewater treatment services described in the request for qualifications. This list shall include a statement setting forth the criteria applied by the contracting unit in selecting qualified vendors, and shall be published in the same publications in which the requests for qualifications were published pursuant to section 6 of this act. L. 1985, c. 72, s. 7, eff. March 11, 1985.
Upon selecting the qualified vendors pursuant to section 7 of this act, a contracting unit shall transmit a request for proposals to the qualified vendors, which shall include a detailed description of the wastewater treatment system and services required, the format and procedure to be followed in submitting proposals, the specific information which the vendor must provide in the proposal, a statement setting forth the relative importance of factors, including cost, which the contracting unit will consider in evaluating a proposal submitted by a qualified vendor, and any other information which the contracting unit deems appropriate. The request for proposals shall include the date and time of day by which, and the place at which, the proposals shall be submitted to the contracting unit. The contracting unit may extend the deadline for submission of proposals, but this extension shall apply to all qualified vendors, who shall be provided with simultaneous written notification of this extension. L. 1985, c. 72, s. 8, eff. March 11, 1985.
A contracting unit shall review proposals submitted by vendors pursuant to section 8 of this act in such a manner as to avoid disclosure of the contents of any proposal to vendors submitting competing proposals. If provided for in the request for proposals, the contracting unit may conduct discussions with qualified vendors who have submitted proposals for the purpose of clarifying any information submitted in the proposal, or assuring that the vendor fully understood and responded to the requirements set forth in the request for proposals. If, as a result of these discussions, the contracting unit decides to revise the request for proposals, it shall immediately notify in writing each qualified vendor which has submitted a proposal of any such revision or revisions to the request for proposals. In the event of any revision in the request for proposals, a qualified vendor shall be permitted to submit revisions to its proposal. L. 1985, c. 72, s. 9, eff. March 11, 1985.
After reviewing the proposals submitted by qualified vendors pursuant to section 9 of this act, a contracting unit shall designate in writing the selected vendor or vendors. This designation shall include a list of the qualified vendors submitting proposals, the basis on which the selected vendor or vendors was chosen, and a finding that the proposal submitted by the selected vendor or vendors constitutes the proposal most advantageous to the jurisdiction to be served under the terms of the proposal, based upon the evaluation factors included in the request for proposals. This designation shall be published in at least one newspaper in general circulation in the jurisdiction to be served under the terms of the proposal. L. 1985, c. 72, s. 10, eff. March 11, 1985.
b. If the Division of Rate Counsel represents the public interest at a public hearing or hearings conducted pursuant to this section, the Division of Rate Counsel shall be entitled to assess the vendor for costs incurred in this representation in the manner provided in section 20 of P.L.1974, c.27 (C.52:27E-19). The basis of the assessment shall be the prospective first year's revenue realized by the vendor from the provision of the wastewater treatment services pursuant to the terms of the proposed contract.
c. If a contract awarded pursuant to the provisions of this act is renegotiated, the contracting unit shall conduct a public hearing on the renegotiated contract pursuant to the provisions of this section.
a. The department, within 60 days of receipt of a proposed contract submitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the department approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract will meet appropriate environmental and water quality standards, and that it is consistent with the areawide and facility water quality management plans adopted for the jurisdiction to be served under the terms of the proposed contract pursuant to the "Water Quality Planning Act," P.L. 1977, c. 75 (C. 58:11A-1 et seq.). If the department conditionally approves a proposed contract, it shall state in writing the revisions which shall be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing.
b. The division, within 60 days of receipt of a proposed contract transmitted to it by a contracting unit pursuant to section 12 of this act, shall approve or conditionally approve the proposed contract. If the division approves the proposed contract, it shall accompany its approval with a written finding that the proposed contract complies with the provisions of section 15 of this act, and that the proposed contract is compatible with the fiscal and financial capabilities of the contracting unit. If the division conditionally approves the proposed contract, it shall state in writing the revisions which shall be made to the proposed contract prior to receiving approval, and shall inform the contracting unit if the revisions to be made to the proposed contract warrant a public hearing.
A contracting unit may award a contract negotiated pursuant to the provisions of this act to a vendor only after the department and the division have approved the proposed contract pursuant to section 13 of this act. L. 1985, c. 72, s. 14, eff. March 11, 1985.
Any contract for the provision of wastewater treatment services negotiated and awarded to a vendor by a contracting unit pursuant to this act, or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.), shall include, but shall not be limited to, provisions concerning:
a. The allocation of the risks of financing and constructing a wastewater treatment system, including delays in completion of the construction of the system, construction and financing cost overruns and increased costs resulting from change orders, construction changes required by revisions in applicable laws, rules, or regulations, failure of the system to achieve its required operating performance or efficiency, changes in tax benefits, and the need for equity contributions in addition to those provided for in the contract;
b. The allocation of the risks of operating and maintaining a wastewater treatment system, including excessive or nonscheduled periods of inoperation or technical failure, excess labor and materials costs due to underestimation, changes in operating procedures required by revisions in applicable laws, rules, or regulations, changes in the quantity or composition of wastewater delivered for treatment, excessive operation or maintenance costs due to poor management, and increased costs of disposal of the residue resulting from wastewater treatment;
c. The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract;
d. The defaulting and termination of the contract;
e. The periodic preparation by the vendor of an operating performance report and an audited balance statement of the wastewater treatment system, which shall be submitted to the contracting unit, the department and the division;
f. The intervals at which the contract shall be renegotiated;
g. The employment of current employees of the contracting unit whose positions or employment will be affected by the terms of the contract; and
h. The formulas to be used to determine the charges, rates, or fees to be charged for the wastewater treatment services, and the methodology or methodologies used to develop these formulas.
A contracting unit which has awarded a contract for the provision of wastewater treatment services to a vendor pursuant to this act or the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.) may lease to the vendor, for a fair market price, the property to be used as a site for a wastewater treatment system, the provisions of any other laws or rules and regulations adopted pursuant thereto to the contrary notwithstanding. L. 1985, c. 72, s. 16, eff. March 11, 1985.
Any contracting unit which, prior to the effective date of this act, has issued a request for qualifications and a request for proposals from vendors for the provision of wastewater treatment services, or has initiated negotiations with a vendor for the provision of wastewater treatment services, may petition the department for certification as being substantially and materially in compliance with the provisions of this act, and, upon receiving this certification, may award a contract for the provision of wastewater treatment services pursuant to the provisions of this act.
The department and the division may adopt, pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), rules and regulations necessary to carry out their respective responsibilities under this act.
"Concession fee" means a payment from a private firm or a public authority to a public entity, regardless of when it is received, that is exclusive of or exceeds any contractually specified reimbursement of direct costs incurred by the public entity;
"Contract" means a long-term written agreement wherein a private firm or a public authority agrees to provide wastewater treatment services for a public entity and wherein the private firm or public authority agrees to provide, during the term of the contract, capital expenditures on behalf of the public entity's wastewater treatment system, which expenditures are set forth in the contract; "Department" means the New Jersey Department of Environmental Protection;
"Division" means the Local Finance Board within the Division of Local Government Services in the Department of Community Affairs;
"Governing body" means the board of chosen freeholders in the case of the county; the board of chosen freeholders and the county executive, the county supervisor or the county manager, as appropriate, in the case of a county organized pursuant to the provisions of the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.); the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality, in the case of a municipality; and the decision-making body of an authority, joint meeting or commission;
"Private firm" means any privately or publicly held company qualified to do business in the State of New Jersey that is financially, technically, and administratively capable of providing wastewater treatment services to a public entity under the terms of a contract entered into pursuant to P.L.1995, c.216 (C.58:27-19 et al.);
"Proposal document" means the document prepared by or on behalf of a public entity describing the wastewater treatment services that the public entity is considering having provided by a private firm or a public authority pursuant to a contract. The proposal document shall include specific minimum qualifications that a private firm or a public authority shall meet, as well as the criteria that will be used by a public entity to evaluate a proposal submitted by a private firm or a public authority;
"Public authority" means a municipal or county authority, commission, municipal or county utility authority, sewerage authority, or joint meeting, which is authorized by law to construct, rehabilitate, operate or maintain a wastewater treatment system or arrange for the provision of wastewater treatment service;
"Public entity" means a county, a municipality, a municipal or county authority or any commission or other political subdivision of the State, or any two or more counties, municipalities, municipal or county utilities authorities, sewerage authorities, joint meetings, or any commission or other political subdivisions of the State, acting jointly, that are authorized by law to construct, rehabilitate, operate or maintain wastewater treatment systems or arrange for the provision of wastewater treatment services;
"Wastewater" means residential, commercial, industrial, or agricultural liquid waste, sewage, septage, stormwater runoff, or any combination thereof, or other liquid residue discharged or collected into a sewer system or stormwater runoff system, or directly into surface or ground waters, or any combination thereof;
"Wastewater treatment services" means the financing, designing, construction, improvement, operation, maintenance, administration, or any combination thereof, of a wastewater treatment system, which services are provided pursuant to P.L.1995, c.216 (C.58:27-19 et al.);
"Wastewater treatment system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed or operated by, or on behalf of, a public entity for the storage, collection, reduction, recycling, processing, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the collection or treatment, or both, of stormwater runoff and wastewater, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, treatment plants and works, connections, outfall sewers, interceptors, trunk lines, stormwater runoff collection systems, and other personal property and appurtenances necessary for their use or operation.
b. The public notice required under subsection a. of this section shall describe the type of services desired and provide the name, address and phone number of the person who can provide additional information and a proposal document to an interested party. The notice shall specify a deadline, which shall be not less than 30 days from the date of the publication of the notice for the submission of proposals by private firms or public authorities to the public entity. The public entity may at any time revise the proposal document and each private firm or public authority that received a proposal document shall be provided with the revised proposal document.
c. The public entity shall conduct a review of the proposals submitted by private firms and public authorities to determine which proposals meet the minimum qualifications and standards. The review shall be conducted in a manner that avoids disclosure of the contents of a proposal to any private firm and public authority submitting a competing proposal. The public entity may conduct discussions with a private firm and public authority submitting a qualified proposal for the purpose of clarifying the information submitted in the proposal. The public entity may at any time revise its proposal document after the review of the submitted proposals if it notifies simultaneously, and in writing, each private firm and public authority that submitted a proposal of the revision and provides a uniform time within which a firm and an authority may submit a revised proposal for review.
d. The public entity shall select one qualified proposal from among those submitted. The public entity shall negotiate a contract with the private firm or public authority that submitted the selected proposal. If the public entity is unable to negotiate a satisfactory contract with the selected private firm or public authority, it may select another qualified proposal from among those submitted and proceed to negotiate a contract with the private firm or public authority that submitted the proposal. The public entity shall set forth, in writing, the reasons for the selection of the qualified proposal submitted by the private firm or public authority with which the public entity has negotiated a proposed contract and shall make this document available to the public along with the proposed contract, upon request, and during the public hearing conducted pursuant to section 6 of P.L.1995, c.216 (C.58:27-24).
e. A contract entered into pursuant to P.L.1995, c.216 (C.58:27-19 et al.) shall include provisions addressing the following:
(1) The charges, rates, fees or formulas to be used to determine the charges, rates, or fees to be charged by the public entity for the wastewater treatment services to be provided;
(2) The allocation of the risks of financing and constructing planned capital additions or upgrades to existing wastewater treatment systems;
(3) The allocation of the risks of operating and maintaining the wastewater treatment system;
(4) The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract;
(5) The defaulting and termination of the contract;
(6) The employment of current employees of the public entity whose positions or employment will be affected by the terms of the contract;
(7) The requirements for the provision of a performance bond by the private firm or public authority, if so required by the public entity; and
(8) The financial cost of compliance with all relevant permits. A contract may contain any other terms and conditions that have been negotiated by the public entity and the private firm or public authority.
f. If a dispute over contract compliance, performance or termination cannot be resolved by the public entity and the private firm or public authority pursuant to the procedures set forth in the contract, either party to the contract may file with the Superior Court which has appropriate jurisdiction a request for an order either to terminate the contract based on the reasons stated in the request or for an order for other appropriate relief to the dispute. The court may take such action as it may deem necessary to facilitate the expeditious resolution of the dispute and an expeditious response to the request, including ordering the parties to undertake a dispute resolution or mediation process. The court shall use, as it deems necessary, the services of a financial expert in the area of wastewater treatment service contracts in its analysis of the contract and the issues before it. Within 90 days after the filing of a request, the court shall either grant the request or deny the request. If the request is granted, the court shall order such appropriate relief measures or remedies as it deems appropriate and necessary.
g. A public entity that has negotiated a contract with a private firm or a public authority pursuant to P.L.1995, c.216 (C.58:27-19 et al.) shall obtain the written opinion of bond counsel as to the effect of the contract on the tax exempt status of existing and future financing instruments executed by the public entity given the terms of the contract and the federal laws or regulations concerning this matter.
h. If a public entity entering into a contract pursuant to P.L.1995, c.216 (C.58:27-19 et al.) consists of multiple municipalities, or is an authority subject to the provisions of P.L.1983, c.313 (C.40A:5A-1 et seq.), a concession fee paid by a private firm or public authority as a result of the contract shall be paid directly to the municipality or municipalities that created or constitute that public entity. Any concession fee paid by a private firm or a public authority to a public entity shall be used for the purpose of reducing or off-setting property taxes, reducing wastewater treatment services rates, one-time nonrecurring expenses or capital asset expenditures; provided, however, nothing herein shall preclude the public entity from using all or part of the concession fees for the purpose of the public entity's qualification for relief from the repayment of federal grant awards associated with the wastewater treatment system as may be required by federal law or regulation. Any disagreement as to whether a payment constitutes a concession fee as that term is defined pursuant to section 3 of this act shall be resolved by the division.
b. The public entity shall provide, at least 14 days prior to the public hearing,
(1) notice in writing to the department and the division of its intent to enter into a contract with a private firm or public authority for the provision of wastewater treatment services, and
(2) notice of the public hearing by publication in at least one newspaper of general circulation in the jurisdiction or service area of the public entity to be served under the terms of the proposed contract. The publication shall include notice of the date, time and place of the public hearing, notice of the place at which copies of the proposed contract will be available for public inspection, and the times during which such inspection will be permitted. The notice shall specifically state whether any concession fee will be paid by a private firm or public authority to the public entity as a result of the contract for wastewater treatment services, the monetary amount of the fee and the potential impact of the fee on the charges, rates or fees which will be paid for wastewater treatment services by users in the jurisdiction or service area that will receive the wastewater treatment services pursuant to the terms of the contract.
c. At the public hearing, the public entity shall explain the terms and conditions of the proposed contract and shall answer questions raised by prospective consumers and other interested parties. The public entity shall explain during the hearing the charges, rates or fees that will or may be charged by the public entity for wastewater treatment services as a result of the proposed contract. In addition, the entity shall explain any concession fee to be paid by a private firm or public authority to the public entity as a result of the contract for wastewater treatment services, the monetary amount of the fee and the potential impact of the fee or benefit on the charges, rates or fees which will be paid for wastewater treatment services by users in the jurisdiction or service area that will receive the wastewater treatment services pursuant to the terms of the contract.
d. The public entity shall produce a verbatim record of the public hearing. The record of the public hearing shall be kept open for a period of seven days following the conclusion of the hearing, during which time interested parties may submit written statements to be included in the hearing report. The public entity shall prepare a written hearing report, which shall include a copy of the proposed contract, a copy of the statement setting forth the public entity's reasons for the selection of the proposal submitted by the private firm or public authority with which the entity has negotiated a contract, the verbatim record of the public hearing, written statements submitted by interested parties, a copy of the bond counsel's written opinion required pursuant to subsection g. of section 5 of P.L.1995, c.216 (C.58:27-23) and a statement prepared by the public entity summarizing the major issues raised at the public hearing and the public entity's specific responses to those issues. The public entity shall make copies of the hearing report available to interested parties, upon request, at a cost not to exceed the actual cost of printing or copying.
e. The governing body of a public entity that has negotiated the proposed contract shall adopt an ordinance or a resolution, as appropriate, or parallel ordinances or resolutions, as the case may be, if there is more than one governing body involved, approving the proposed contract. The ordinance or resolution may be introduced at the first meeting of the governing body of the public entity held after the public hearing on the proposed contract, and shall acknowledge that the agreement requires approval pursuant to the provisions of section 7 of P.L.1995, c.216 (C.58:27-25).
f. Within 30 days after the close of a public hearing on a proposed contract held pursuant to subsection a. of this section and upon at least 10 days prior written notice, the public entity shall submit an application for approval to the division and shall submit the hearing report to the department for review pursuant to the provisions of section 7 of P.L.1995, c.216 (C.58:27-25). The division shall specify the form of the application to be submitted.
b. Any transaction undertaken by a partnership or copartnership established pursuant to a contract authorized under section 2 of P.L.1993, c.381 (C.58:28-2) shall be subject to oversight and approval of the Department of Environmental Protection, and shall be subject to the permit system established pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et al.), except that any proposed modification to the existing water allocation permit of a water supply facility, relating to the transaction, that would authorize the transfer to a municipality of up to one-third of the quantity of water allocated by the existing permit shall be deemed to be automatically approved pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et al.).
c. Any agreement entered into by a partnership or copartnership established pursuant to section 2 of P.L.1993, c.381 (C.58:28-2) shall not be subject to the provisions of the "New Jersey Water Supply Privatization Act," P.L.1985, c.37 (C.58:26-1 et seq.).
"Board" means the Board of Public Utilities.
"Concession fee" means a payment from a duly incorporated nonprofit association to the governing body of a city of the first class, regardless of when it is received, that is exclusive of or exceeds any contractually specified reimbursement of direct costs incurred by the governing body.
"Contract" means a long-term written agreement wherein a duly incorporated nonprofit association agrees to provide water supply services or wastewater treatment services on behalf of the governing body of a city of the first class and wherein the duly incorporated nonprofit association agrees to provide, during the term of the contract, capital expenditures on behalf of the governing body's water supply facility as defined in subsection (16) of section 15 of P.L.1971, c.198 (C.40A:11-15) or wastewater treatment system as defined in subsection (19) of section 15 of P.L.1971, c.198 (C.40A:11-15), or both, as the case may be, which expenditures are set forth in the contract.
"Department" means the Department of Environmental Protection.
"Director" means the Director of the Division of Local Government Services in the Department of Community Affairs.
"Division" means the Division of Local Government Services in the Department of Community Affairs.
"Proposal document" means the document prepared by or on behalf of the governing body of a city of the first class describing the water supply services or wastewater treatment services that the governing body is considering having provided by a duly incorporated nonprofit association pursuant to a contract.
b. The public notice required under subsection a. of this section shall describe the type of services desired and provide the name, address and phone number of the person who can provide additional information and a proposal document to an interested party.
c. The public entity shall set forth in writing the reasons for the selection of the nonprofit association and shall make this document available to the public along with the proposed contract upon request and during the public hearing conducted pursuant to section 5 of P.L.2002, c.47 (C.58:28-6)(now before the Legislature as this bill).
d. A contract entered into pursuant to sections 1 and 2 of P.L.2002, c.47 (C.40A:12-17.1 and 40A:11-5.1) shall include provisions addressing the following:
(1) The charges, rates, fees or formulas to be used to determine the charges, rates, or fees to be charged by the nonprofit association for the water supply services or wastewater treatment services to be provided.
(2) The allocation of the risks of financing and constructing planned capital additions or upgrades to existing water supply facilities or wastewater treatment systems.
(3) The allocation of the risks of operating and maintaining the water supply facilities or wastewater treatment systems.
(4) The allocation of the risks associated with circumstances or occurrences beyond the control of the parties to the contract.
(5) The defaulting and termination of the contract.
(6) The employment of current employees of the city of the first class whose positions or employment will be affected by the terms of the contract.
(7) The nonprofit association's authority and the extent, or the procedures for the use, of that authority to initiate, negotiate and finalize the terms for a bulk sale of surplus water. The contract shall either grant the nonprofit association such authority or specifically state that the nonprofit association is denied that authority. Nothing in P.L.2002, c.47 (C.40A:12-17.1 et al.) shall be construed to authorize a city of the first class that enters into a contract pursuant to sections 1 and 2 of P.L.2002, c.47 (C.40A:12-17.1 and 40A:11-5.1) to provide for the bulk sale, lease or transfer of water if the water being transferred, leased or sold has been supplied to the city of the first class either by the New Jersey Water Supply Authority or by the North Jersey District Water Supply Commission, unless the authority pursuant to P.L.1981, c.293 (C.58:1B-1 et seq.) or the district pursuant to R.S.58:5-1 et seq., as appropriate, has agreed to the bulk sale, lease or transfer.
(8) The requirements for the provision of a performance bond by the nonprofit association, if so required by the governing body.
e. A contract entered into pursuant to sections 1 and 2 of P.L.2002, c.47 (C.40A:12-17.1 and 40A:11-5.1) shall provide that any lands leased or otherwise conveyed to the duly incorporated nonprofit association pursuant to the provisions of P.L.2002, c.47 (C.40A:12-17.1 et al.) shall not be developed for any purpose other than for the provision of water supply services or wastewater treatment services as determined by the Commissioner of Environmental Protection.
f. If a dispute over contract compliance, performance or termination cannot be resolved by the parties to the contract pursuant to the procedures set forth in the contract, either party to the contract may file with the Superior Court which has appropriate jurisdiction a request for an order either to terminate the contract based on the reasons stated in the request or for an order for other appropriate relief to the dispute. The court may take such action as it may deem necessary to facilitate the expeditious resolution of the dispute and an expeditious response to the request, including ordering the parties to undertake a dispute resolution or mediation process. The court shall use, as it deems necessary, the services of a financial expert in the area of water supply service or wastewater treatment service contracts in its analysis of the contract and the issues before it. Within 90 days after the filing of a request, the court shall either grant the request or deny the request. If the request is granted, the court shall order such appropriate relief measures or remedies as it deems appropriate and necessary.
b. The governing body shall provide, at least 14 days prior to the public hearing, (1) notice in writing to the board, department and the division of its intent to enter into a contract with a duly incorporated nonprofit association for the provision of water supply services or wastewater treatment services, and (2) notice of the public hearing by publication in at least one newspaper of general circulation in the jurisdiction or service area of the governing body to be served under the terms of the proposed contract. The publication shall include notice of the date, time and place of the public hearing, notice of the place at which copies of the proposed contract will be available for public inspection, and the times during which such inspection will be permitted. The notice shall specifically state whether any concession fee will be paid by the duly incorporated nonprofit association to the governing body as a result of the contract for water supply services or wastewater treatment services, the monetary amount of the concession fee and the potential impact of the concession fee on the charges, rates or fees which will be paid for water supply services or wastewater treatment services by users in the jurisdiction or service area that will receive the water supply services or wastewater treatment services pursuant to the terms of the contract.
c. At the public hearing, the governing body shall explain the terms and conditions of the proposed contract and shall answer questions raised by prospective consumers and other interested parties. The governing body shall explain during the hearing the charges, rates or fees that will or may be charged to users in the jurisdiction or service area for water supply services or wastewater treatment services as a result of the proposed contract. In addition, the governing body shall explain any concession fee to be paid by a duly incorporated nonprofit association to the governing body as a result of the contract for water supply services or wastewater treatment services, the monetary amount of the concession fee and the potential impact of the concession fee or benefit on the charges, rates or fees which will be paid for water supply services or wastewater treatment services by users in the jurisdiction or service area that will receive the water supply services or wastewater treatment services pursuant to the terms of the contract.
d. The governing body shall produce a verbatim record of the public hearing. The record of the public hearing shall be kept open for a period of seven days following the conclusion of the hearing, during which time interested parties may submit written statements to be included in the hearing report. The governing body shall prepare a written hearing report, which shall include a copy of the proposed contract, the verbatim record of the public hearing, written statements submitted by interested parties, a copy of the bond counsel's written opinion required pursuant to section 2 of P.L.2002, c.47 (C.40A:11-5.1) and a statement prepared by the governing body summarizing the major issues raised at the public hearing and the governing body's specific responses to those issues. The governing body shall make copies of the hearing report available to interested parties, upon request, at a cost not to exceed the actual cost of printing or copying.
e. The governing body may adopt an ordinance as provided in section 1 of P.L.2002, c.47 (C.40A:12-17.1) and may enter into a contract as provided in section 2 of P.L.2002, c.47 (C.40A:11-5.1). The ordinance may be introduced at the first meeting of the governing body held after the public hearing on the proposed contract, and shall acknowledge that the contract requires approval pursuant to the provisions of section 6 of P.L.2002, c.47 (C.58:28-7).
f. Within 30 days after the close of a public hearing on a proposed contract held pursuant to subsection a. of this section and upon at least seven days' prior written notice, the governing body shall submit an application for approval to the division and the board and shall submit the hearing report to the department for review pursuant to the provisions of section 6 of P.L.2002, c.47 (C.58:28-7). The division shall specify the form of the application to be submitted.
b. If either the board or the division conditionally approves the application, the board or division shall state in writing the revision to the proposed contract that is necessary in order for it to be approved. If the board or division determines that the required revision is substantial, the governing body shall hold a public hearing on the revision and adhere to the provisions of section 5 of P.L.2002, c.47 (C.58:28-6) in so doing, except that the required notice shall be published at least seven days prior to the public hearing. A substantial revision shall be a change that results in an increase in the charges, rates or fees which will be paid for water supply services or wastewater treatment services by users in the jurisdiction or service area that will receive the water supply services or wastewater treatment services pursuant to the terms of the contract, or that materially changes other terms and conditions of the contract. The proposed revision to the contract shall be submitted to the board, division and the department 15 days prior to the date of the public hearing.
If the board or division determines that the required revision in the conditional approval is not substantial, the governing body shall submit the proposed revision to the contract to the board and the division for approval and to the department for review. The revision shall be approved if found to be consistent with the conditions set forth in the conditional approval, or disapproved with a written explanation as to why the revision is not consistent, within 15 days after the next public meeting of the board or division.
c. In its review of a contract, the board shall apply the following criteria in determining whether to approve the contract:
(1) The duly incorporated nonprofit association entering into the contract has the technical and administrative experience to ensure continuity of service over the term of the contract and that the standards and requirements contained in the application documents concerning the technical and administrative capacity of the nonprofit association are necessary and sufficient to protect the public interest.
(2) The terms of the contract are not unreasonable. In determining whether the terms of the contract are not unreasonable, the board shall review the charge, rates or fees to be charged or assessed under the contract to determine that they are reasonable to the city of the first class, taking into consideration all of the obligations undertaken by the nonprofit association and all the benefits obtained by the city of the first class. In making this determination, the board shall not use the traditional rate based rate of return methodology.
(3) The franchise customers of a public utility participating in a contract are protected from the risks of the proposed contract and that they are not subsidizing the contract. If the nonprofit association is not a public utility, the board shall ensure that under the terms of the proposed contract the users of water outside of the jurisdiction or service area that will receive water supply services under the contract are also protected from the risks of the contract and that water users outside the jurisdiction or service area are not subsidizing the contract through increased charges, rates or fees for the supply of water.
(4) The contract contains the provisions required by paragraphs (1), (2) and (6) of subsection d. of section 4 of P.L.2002, c.47 (C.58:28-5).
Upon approval of a contract as proposed or as revised in response to a conditional approval, the jurisdiction of the board over the contract shall terminate until or unless the contract is amended to change the formula or other basis of determining charges, rates or fees contained therein.
d. In its review of a contract, the division shall apply the following criteria in determining whether to approve the contract:
(1) The terms of the proposed contract do not materially impair the ability of the governing body to punctually pay principal and interest due on its outstanding indebtedness and to supply other essential public improvements and services;
(2) A concession fee paid by a duly incorporated nonprofit association as a result of the contract is paid directly to the municipality that created or constitutes the governing body, and any concession fee paid by a duly incorporated nonprofit association to a governing body is used for the purposes of reducing or off-setting property taxes, reducing water supply services or wastewater treatment services charges, rates or fees, one-time nonrecurring expenses or capital asset expenditures related to water supply facilities or wastewater treatment systems; and
(3) The contract contains the provisions required by paragraphs (3), (4), (5), (7) and (8) of subsection d. of section 4 of P.L.2002, c.47 (C.58:28-5).
The division shall also review and specifically approve any contract provision pursuant to which a governing body will or may execute a financing instrument for the purposes set forth in the contract. In addition, the division shall review any contract between the governing body of a city of the first class and a duly incorporated nonprofit association in which a concession fee is paid by the nonprofit association to determine if the payment of the concession fee is in the best interest of the parties to the contract.
e. The board or division may provide the governing body with any non-binding comments or advice during or after the review of the application as the board or division deems appropriate.
f. The board or division shall assess and the applicant shall pay a fee equal to the cost incurred by the board or division for an analysis of an application by an independent person who has expertise in the areas of water supply services or wastewater treatment services if during the review of an application the board or division determines that such an analysis is required.
g. If the governing body of a city of the first class and the duly incorporated nonprofit association would like to amend a contract after approval of an application by the board and division, the governing body shall submit proposed amendments to the board and division for approval and to the department for review. At the next public meeting of the board and of the division after receipt of proposed amendments, the board and the division shall determine whether the proposed amendments are substantial. If the amendments are substantial in nature as determined by either the board or the division, the governing body shall conduct a hearing pursuant to section 5 of P.L.2002, c.47 (C.58:28-6). Within 45 days of the receipt of proposed amendments that are not determined to be substantial, or within 45 days of the receipt of an application for approval of proposed amendments that are determined to be substantial, the board and division shall approve or conditionally approve the amendments in accordance with the applicable procedures established for approval of an original contract pursuant to this section.
The Legislature further finds and declares that the Department of Environmental Protection currently administers the State's water quality planning, monitoring, permitting and enforcement programs; that the department has recently begun to change its long-standing, permit-based approach to water resource protection and water pollution control to that of a watershed-based planning approach; that such an approach would greatly increase the overall efficiency and precision with which pollution control measures could be applied; and that the federal Clean Water Act establishes policy guidelines requiring states to clean up polluted waters and protect waters that meet water quality standards.
The Legislature further finds and declares that the Fiscal Year 1997 funding levels must be increased in future years to enable the department to meet the requirements of the federal Clean Water Act; and that the constitutionally dedicated and appropriated additional monies, when used to fund a watershed-based approach to water resource management and pollution control, will greatly assist the State in protecting waters that meet water quality standards and in attaining and complying with federal water quality standards.
The Legislature therefore determines that it is in the public interest and consistent with the intent of Article VIII, Section II, paragraph 6, subparagraph (a) of the New Jersey Constitution to provide statutory guidance to the department for the use of the dedicated monies; that the dedicated monies should be used to support an expansion of department efforts in the area of water resource management; and that the State should adopt a watershed-based approach to most effectively and efficiently comply with federal guidelines.
"Department" means the Department of Environmental Protection;
"Federal Act" means the federal "Clean Water Act" (33 U.S.C. s.1251 et seq.);
"Total maximum daily load" means the sum of individual point and nonpoint sources of pollution, other sources such as tributaries or adjacent segments, and allocations to a reserve or margin of safety for an individual pollutant or as defined in subsequent rules and regulations of the department;
"Watershed" means a geographic area within which water, sediments, and dissolved materials drain to a particular receiving waterbody;
"Watershed management activity" means activities or projects undertaken by the department, the Pinelands Commission established pursuant to section 4 of P.L.1979, c.111 (C.13:18A-4), or a watershed management group to improve the condition or prevent further degradation of a watershed, and may include, but need not be limited to, public meetings to discuss and exchange information on watershed issues, the establishment and operation of a stakeholders advisory group or groups dedicated to preserving and protecting a watershed, the monitoring, water quality modeling or assessment of the condition of a watershed, the development of policy goals to reduce the amount of pollutants discharged into a watershed, the development of projects designed to enhance or restore a watershed, the development, in consultation with the department, of a watershed management plan, or the reassessment of a watershed to determine whether the policy goals or the objectives of a watershed management plan have been attained;
"Watershed management area" means a geographic area in the State, as designated by the department, within which may be found one or more watersheds;
"Watershed management group" means a group recognized by the department as the entity representing the various interests within one or more watersheds located in a watershed management area and whose purpose is to improve the condition or prevent further degradation of a watershed or watersheds. A watershed management group shall include, but need not be limited to, local and county government officials, a representative of water purveyors, a representative of wastewater utilities or authorities, a representative of the business community, a representative of the development community, and a representative of the environmental community; except that a watershed management group need not include all such officials or representatives if any such officials or representatives decline or are unable to participate in the watershed management group as may be determined by the department in accordance with guidelines or rules and regulations adopted by the department. Where a regional planning agency has been created for all or part of the watershed management area to be represented by the watershed management group, an official of that regional planning agency shall be included in the watershed management group; and
"Watershed management plan" means a plan developed by the department, or by the Pinelands Commission or a watershed management group in consultation with the department, designed to improve the condition or prevent further degradation of a watershed or watersheds, and shall include consideration of groundwater quality and quantity, consideration of water supply quality and quantity, a determination of the total maximum daily load amount of pollutants that can be discharged into the watershed or watersheds targeted by the plan, the implementation of water quality-based effluent limits for point sources, and regulatory and best management practices to control nonpoint sources of pollution.
a. The development and adoption of a priority list of water quality limited waterbodies pursuant to the requirements of section 303(d)(1)(A) of the Federal Act (33 U.S.C. s.1313);
b. The monitoring and assessment of all State waters pursuant to the requirements of section 305(b) of the Federal Act (33 U.S.C. s.1315);
c. The delineation of watershed management areas and stream segments;
d. The identification of potential causes of the use impairment or water quality standard violations related to waterbodies on the priority list required pursuant to sections 303(d)(1)(A) and 305(b) of the Federal Act by means of assessment of reliable data, including, but not necessarily limited to, identification of point sources, nonpoint sources, habitat degradation, and hydrologic changes. This identification shall include a broad-based intensive survey monitoring program that shall supplement the existing chemical, biological and toxics-in-biota monitoring networks, and that shall intensively sample watersheds or segments of watersheds on a periodic basis and establish a detailed watershed-wide assessment process. The number of monitoring sites within a watershed shall be determined by existing water quality, land uses, known and potential pollution sources, and the amount of available historical data. The supplemental survey monitoring program, shall be designed to provide:
(1) a detailed profile of water quality over specified time periods;
(2) an identification and detailed profile of both point and nonpoint pollution sources;
(3) a quantification of pollutant loadings and pollution impacts on receiving waters from both point and nonpoint sources; and
(4) water quality modeling based upon amounts of point and nonpoint sources of pollution and land use;
e. The development of total maximum daily loads and water quality-based effluent limitations for water quality limited waterbodies, as required pursuant to section 303(d)(1)(C) of the Federal Act, and any rules or regulations adopted pursuant thereto;
f. The development and presentation of data on the department's Geographic Information System (GIS);
g. The development and adoption of pollution prevention best management practices to control point and nonpoint sources of pollution;
h. The characterization of land use and land cover in each watershed;
i. The development and adoption of a watershed management plan;
j. The development and planning by the department of a watershed management program and the integration of the department's rules and regulations with the program; and
k. The development and implementation of a watershed protection loan and grant program, as described pursuant to section 6 of this act.
(2) A watershed management group may, pursuant to guidance provided or rules or regulations adopted by the department, distribute all or part of the loan or grant to another person who is to perform a watershed management activity for which the loan or grant was provided. If the watershed management group distributes the loan or grant to a person who has a NJPDES permit to discharge pollutants into the waters of the State pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), the distribution shall be conditioned upon the permittee providing a match of one dollar for every dollar provided by the loan or grant. The match may be made either as a monetary payment or as an in-kind contribution. Any person who has a NJPDES permit and who accepts a loan or grant pursuant to this subsection shall agree not to use any of the loan or grant monies for the purpose of complying with NJPDES permit requirements.
b. The department shall establish guidelines for the development of watershed management plans by watershed management groups. The department shall provide guidance and technical assistance to watershed management groups seeking assistance in the development of a watershed management plan or in the development and implementation of watershed management activities.
b. Monies shall be appropriated to the department pursuant to Article VIII, Section II, paragraph 6, subparagraph (a) of the New Jersey Constitution, deposited in the fund, and allocated for the following purposes:
(1) From the monies appropriated in Fiscal Year 1997 pursuant to section 8 of this act, 100 percent of the monies shall be used by the department to support the purposes established in subsections a. through j. of section 5 of this act;
(2) From the monies appropriated in Fiscal Year 1998, not more than 35 percent of the monies may be used to support the purposes identified in subsection k. of section 5 of this act and the remainder of the monies shall be used by the department to support the purposes established in subsections a. through j. of section 5 of this act; and
(3) From the monies appropriated in Fiscal Year 1999 and every year thereafter, not more than 50 percent of the monies may be used to support the purposes identified in subsection k. of section 5 of this act and the remainder of the monies shall be used by the department to support the purposes established in subsections a. through j. of section 5 of this act.
c. The department may not expend any monies that are or may be appropriated by the Legislature for the purposes identified in subsection k. of section 5 of this act until the department submits a list of proposed loan or grant recipients to the Legislature, and the Legislature, by the passage of a concurrent resolution, approves that list. The Legislature may approve all or part of that list and only those persons listed in the approved concurrent resolution may receive a watershed protection loan or grant from the department. The concurrent resolution may limit or specify the amount of any loan or grant and may establish any other condition of receiving the loan or grant. The list of proposed recipients submitted to the Legislature by the department shall specify the name of the proposed recipient, the amount of the loan or grant to be awarded, the intended purpose of the loan or grant, the watershed or watersheds involved, and any other information relevant to the award of the loan or grant.
d. The department may not expend any monies in Fiscal Year 1999 and thereafter that are or may be appropriated by the Legislature for the purposes identified in subsection k. of section 5 of this act until the department has adopted rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), concerning the development and implementation of watershed management activities by watershed management groups and the submission and review of loan and grant applications.
e. Any transfer of appropriated funds between purposes authorized by this section shall require the approval of the Joint Budget Oversight Committee or its successor. No such transfer of funds shall be approved by the committee or its successor if the transfer would cause exceedance of the funding percentage allocation limitations set forth in subsection b. of this section. Any transfer of funds from an approved loan or grant recipient to another approved loan or grant recipient shall also require the approval of the committee or its successor.
a. The maintenance and operation of water and wastewater treatment and conveyance systems is vital to ensuring the protection of water quality and clean drinking water in New Jersey;
b. There are public water and wastewater systems in the State that present serious risks to the integrity of drinking water and the environment because of issues such as aging infrastructure systems, the deterioration of the physical assets of the systems, or damage to infrastructure so severe that it is beyond governmental capacity to restore;
c. Under the appropriate circumstances, the transfer of these threatened water and wastewater assets to a capable private or public entity with the financial resources and expertise to improve management, operation, and continued maintenance of the assets could help ensure the protection of drinking water; and
d. It is in the public interest that public entities have the option to transfer, lease, or sell water or wastewater assets if there exist emergent conditions that threaten drinking water or the environment.
"Board" means the Board of Public Utilities.
"Capable private or public entity" means any private or public water system owner who, at the time of submitting a proposal to long-term lease or purchase public water or wastewater assets, currently (1) owns a system serving no less than the number of residential and commercial accounts as the system which the entity is proposing to lease or purchase, and (2) is not a significant noncomplier, as defined pursuant to section 3 of P.L.1977, c.7 (C.58:10A-3), is not currently the subject of a formal enforcement action initiated by the New Jersey Department of Environmental Protection to address a material violation by the entity which has not been corrected over a reasonable period of time given the specific situation, or is not substantially out of compliance with an administrative consent order, settlement agreement, stipulation of settlement or judicial consent order entered into with the department.
"Department" means the Department of Environmental Protection.
"Director" means the Director of the Division of Local Government Services in the Department of Community Affairs.
"Governing body" means a "governing body" as defined in section 3 of the "New Jersey Wastewater Treatment Public-Private Contracting Act," P.L.1995, c.216 (C.58:27-19 through C.58:27-27).
"Licensed engineer" means a professional engineer licensed pursuant to P.L.1938, c.342 (C.45:8-27 et seq.).
"Long-term lease" means a lease of longer than 30 years under which the municipal owner seeks to transfer ownership of the system at the end of the lease term.
"Owner" means any municipality, except a municipality that is a city of the first class with a population of 270,000 or more according to the latest federal decennial census, that owns water or wastewater assets. Municipalities constituting a joint meeting, and the joint meeting itself shall not be considered an owner for the purposes of this definition.
"Registered apprenticeship program" means an apprenticeship program registered with and approved by the United States Department of Labor and which provides to each trainee combined classroom and on-the-job training under the direct and close supervision of a highly skilled worker in an occupation recognized as an apprenticeable trade, and which meets the program performance standards of enrollment and graduation under 29 C.F.R. s.29.6.
"System" means the plants, structures, and other real and personal property of an owner that is, or is to be, acquired, constructed, or operated for the purpose of processing water or wastewater, including sewage, for distribution or treatment.
"Water or wastewater assets" means any system along with any other related buildings, equipment, or other infrastructure.
b. Emergent conditions shall exist if at least one of the following conditions is met:
(1) The system is located in an area designated by the Department of Environmental Protection as an Area of Critical Water Supply Concern I or II, or any future designation or newly added area of critical water supply concern;
(2) The owner of the system is a significant noncomplier, as defined pursuant to section 3 of P.L.1977, c.7 (C.58:10A-3), has been the subject of a formal enforcement action initiated by the department, or is substantially out of compliance with an administrative consent order, settlement agreement, stipulation of settlement, or judicial consent order entered into with the department; or
(3) There is a present deficiency or violation of maximum contaminant levels established pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.), concerning the availability or potability of water, or concerning the provision of water at adequate volume or pressure, or distribution or treatment of wastewater;
(4) There is a demonstrated lack of historical investment, repair, or sustainable maintenance as determined by the department, or material damage to the infrastructure of the system; or
(5) The system owner lacks the financial, technical, or managerial capacity to adequately address any of the foregoing on a sustainable basis or own and operate the system in a way that supports economic activity in the municipality on a sustainable basis.
c. Should the owner determine that one or more emergent conditions contained in subsection b. of this section exists and that it is necessary to take steps to effectuate the sale or long-term lease of its water or wastewater assets to a capable private or public entity pursuant to this act to address these emergent conditions and to operate and maintain the system, the owner shall through the utilization of applicable public procurement laws of the State of New Jersey retain the services of an independent financial advisor to review, analyze and report on the value of the system and the short and long term impacts to rate-payers of the cash-flow structure of the proposed transaction and to provide an estimate as to the financial requirements necessary to address the emergent conditions and to operate and maintain the system. Upon completion of the analysis and review, the independent financial advisor shall transmit its report to the owner. Within 10 days of the approval of the report by the owner, the owner shall transmit copies to the board, the director, and the department and shall make the report available for public review.
d. After the independent financial advisor has completed its analysis of the financial aspects of the proposed transaction and has presented its report to the owner, a public hearing on the proposed emergent condition certification shall be held. The owner shall provide notice of the public hearing no less than 30 days prior to the date of the hearing. The notice shall prominently state the findings upon which the certification of emergent conditions is based, a summary of the findings by the independent financial advisor and that the certification is in anticipation of a proposed long-term lease or sale of water or wastewater assets to a capable private or public entity. Notice of the public hearing shall be published on the official Internet website of the municipality and at least once in one or more newspapers circulating in the municipality. Notice of the public hearing shall be published on the official Internet website of the county and at least once in one or more newspapers circulating in the county. If an applicable official website does not exist, notice of the public hearing shall be published on the official Internet website of the Department of Community Affairs.
e. After the public hearing and after giving due consideration to the findings of the independent financial advisor, the governing body of the owner shall, by resolution adopted by at least two-thirds of its authorized membership, certify that one or more emergent conditions exist and that the owner intends to sell or long-term lease its water or wastewater assets to a capable private or public entity to address these emergent conditions and to operate and maintain the system. Within five days of the adoption of the resolution, the governing body of the owner shall transmit a true copy of the resolution, to the department, the board, and the director. Within 30 days of receipt of the resolution by the department, the department shall approve or reject the owner's emergent conditions certification as contained in the resolution.
f. Upon receipt of the approval of the emergent conditions certification by the Department of Environmental Protection, the owner shall publish notice of the approval if the owner chooses to proceed with the sale or long-term lease of its water or wastewater assets to a capable private or public entity. The notice shall prominently state that the certification is in anticipation of a long-term lease or sale of water or wastewater assets to a capable private or public entity. Notice of the approval shall be published on the official Internet website of the municipality and at least once in one or more newspapers circulating in the municipality, and shall prominently state that a petition may be filed within 45 days after the publication of such notice to require a referendum before a resolution authorizing the long-term lease or sale of water or wastewater assets may take effect. If an applicable official website does not exist, notice of the approval shall be published on the official Internet website of the Department of Community Affairs.
g. A petition may be filed with the municipal clerk, no later than 45 days after the notice of the approval of the emergent conditions certification is published, protesting the lease or sale of water or wastewater assets without a public referendum. If the petition is signed by a number of legal voters of the municipality equal to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, a resolution to lease or sell water or wastewater assets shall not take effect unless the lease or sale of such assets is approved pursuant to R.S.40:62-4 and R.S.40:62-5. If a petition is not filed pursuant to this subsection, a resolution to lease or sell water or wastewater assets shall not be subject to a public referendum.
b. After an emergent conditions certification is made pursuant to subsection e. of section 5 of P.L.2015, c.18 (C.58:30-5), the owner shall determine the qualified respondents. The owner shall issue a request for proposals to each qualified respondent no less than 14 days prior to the date established for submission of the proposals. The request for proposals shall include relevant technical submissions, documents, and criteria including but not limited to a description of the facilities and the debt related thereto and the evaluation criteria to be used in the selection of the designated respondent. The proposals shall include and shall be evaluated by, at a minimum, the following:
(1) the documented deficiencies of the owner's system upon which the emergent conditions certification is based and a description of the corrective measures to be undertaken by the respondent to address and correct the identified emergent conditions;
(2) a description of the financial, managerial, and technical capabilities of the respondent to operate and maintain the system in compliance with all applicable State and federal laws and regulations, as well as a description of all the respondent's outstanding and pending violations of the "Pollution Prevention Act," P.L.1991, c.235 (C.13:1D-35 et seq.); P.L.1942, c.308 (C.58:11-9.1 et seq.); "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.); and the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.);
(3) an analysis of the relevant expenditures associated with such activities and the projected impact on customer rates;
(4) an analysis of any Internal Revenue Code or other tax code issues that may arise from the long-term lease or sale of a publicly funded water or wastewater asset, as well as any potential short-term or long-term costs arising there from;
(5) a long-term capital improvement or asset management plan; and
(6) any other pertinent information required of or deemed appropriate by the owner.
c. Upon a review of the proposals submitted by qualified respondents, the governing body of an owner shall, by resolution adopted by at least two-thirds of its authorized membership, designate one qualified respondent, whose proposal the governing body finds to be the most advantageous to the public, taking into consideration the evaluation criteria set forth in the request for proposals and as specified under subsection b. of this section. The resolution shall include a detailed summary of the governing body's findings that the proposal of the designated respondent is most advantageous to the public. The summary shall be published in accordance with the notification requirements of section 5 of P.L.2015, c.18 (C.58:30-5).
b. (1) Every proposed contract shall include a clause stating that to the extent it does not violate any existing collective bargaining agreements between the capable private or public entity and its employees, the capable private or public entity shall give first consideration in hiring to any public employees displaced by the long-term lease or sale of the water or waste water assets.
(2) After an agreement on a proposed contract is reached between the owner and the designated respondent, the governing body of the owner shall, by resolution adopted by at least two-thirds of its authorized membership, cause the proposed contract to be submitted to the board for approval and cause the proposed use of proceeds of the long-term lease or sale to be submitted to the director for approval.
c. (1) The proposed contract submitted to the board shall include the rent or sale price, any appraisals supporting the rent or sale price, documentation regarding the defeasance of debt, and any other information requested by the board. The board shall approve or reject the proposed contract within 90 days of receipt thereof. If no disposition is made within 90 days, the proposed contract shall be deemed approved.
(2) For the purposes of rate making and recovery, the board shall accept the negotiated sale price between the owner and the designated respondent as the new rate base effective as of the date of the approval of the long-term lease or sale, as may be the case, provided the price is deemed reasonable.
The rent or sale price shall be deemed reasonable if it meets the following conditions:
(a) The rent or sale price is sufficient to defease the debt of the owner; and either
(b) (i) The rent or sale price is within the range of any appraisals obtained with respect to the long-term lease or sale of the water or wastewater assets; or
(ii) If there is little or no established rate base for the water or wastewater assets, the rent or sale price is reasonably comparable to a proxy rate base equivalent to the rate base of the designated respondent.
(3) In valuing the water or wastewater assets, appraisers shall comply with the Uniform Standards of Professional Appraisal Practice promulgated by the Appraisal Standards Board of the Appraisal Foundation.
(4) In valuing the water or wastewater assets and for the purposes of rate making, the original source of funding for any part of the water or wastewater assets shall not be relevant.
(5) Reasonable and prudent transaction, closing, and transition costs incurred by the designated respondent shall be recoverable in rates.
(6) The proposed use of proceeds submitted to the director shall include the rent or sale price, the total amount required to defease debt, any costs associated with compliance with the Internal Revenue Code or other tax code that may arise from the long-term lease or sale of a publicly funded water or wastewater asset, the remaining proceeds after the defeasance of debt and Internal Revenue Service compliance costs, the amount dedicated to the following, in order of priority: compliance with the provisions of the "Pollution Prevention Act," P.L.1991, c.235 (C.13:1D-35 et seq.); P.L.1942, c.308 (C.58:11-9.1 et seq.); "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.); and the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.), any outstanding fees or fines owed by the entity to any federal, State, county or local governmental units, capital improvements, community improvements, and general purposes of the owner. The amount dedicated to capital improvements shall comply with a previously adopted long-term capital improvement plan or asset management plan, and must represent at least 50 percent of the remaining proceeds once the debt is defeased. The director shall approve or reject the proposed use of proceeds within 30 days of receipt thereof. If no disposition is made within 30 days, the proposed use of proceeds shall be deemed approved.
a. (1) be paid, or pay any worker employed by the contractor or subcontractor, not less than the wage rate for their craft or trade as determined by the Commissioner of Labor and Workforce Development pursuant to the provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.) and shall comply with the requirements of section 2 of P.L.2007, c.343 (C.34:13B-2.1);
b. only employ a worker from an apprenticeable trade who is either an apprentice participating in a registered apprenticeship program or who has completed a registered apprenticeship program, unless the contractor or subcontractor certifies that each such worker shall be paid no less than the journeyman rate established for the apprenticeable trade performed pursuant to P.L.1963, c.150 (C.34:11-56.25 et seq.); and
c. all contractors and subcontractors shall comply with the provisions of "The Public Works Contractor Registration Act," P.L.1999, c.238 (C.34:11-56.48 et seq.).
"Board" means the Board of Public Utilities.
"Cybersecurity incident" means an event occurring on or conducted through a computer network that jeopardizes the integrity, confidentiality, or availability of computers, information systems, communications systems, networks, physical or virtual infrastructure controlled by computers or information systems, or information residing thereon.
"Cybersecurity insurance policy" means an insurance policy designed to mitigate losses from cybersecurity incidents, including, but not limited to, data breaches, business interruption, and network damage.
"Department" means the Department of Environmental Protection.
"Industrial control system" means an information system used to control industrial processes such as manufacturing, product handling, production, or distribution.
"Industrial control system" includes supervisory control and data acquisition systems used to control geographically dispersed assets, and distributed control systems and smaller control systems using programmable logic controllers to control localized processes.
"Information resource" means information and related resources, such as personnel, equipment, funds, and information technology.
"Information system" means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.
"New Jersey Cybersecurity and Communications Integration Cell" means the New Jersey Cybersecurity and Communications Integration Cell established pursuant to Executive Order No. 178 (2015) in the New Jersey Office of Homeland Security and Preparedness, or any successor entity.
"Public community water system" means the same as that term is defined in subsection l. of section 3 of P.L.1977, c.224 (C.58:12A-3).
"Public water system" means the same as the term is defined in section 3 of P.L.1977, c.224 (C.58:12A-3).
"Water purveyor" means any person that owns a public community water system with more than 500 service connections.
b. Each water purveyor shall inspect each valve that is 12 or more inches in diameter at least once every four years, and shall inspect all other valves at least once every eight years, except that the requirements of this subsection shall not apply to any service connection valve or customer shut-off valve. At a minimum, each valve inspection conducted pursuant to this subsection shall include:
(1) clearing of the area around the valve to ensure full access to the valve for operating purposes;
(2) cleaning out of the valve box;
(3) dynamic testing of the valve, by opening and then closing the valve for either of the following number of turns:
(a) the number of turns recommended by the valve manufacturer to constitute a credible test; or
(b) the number of turns which constitutes 15 percent of the total number of turns necessary to completely open or completely close the valve ; and
(4) complying with any other criteria as may be required by the department pursuant to rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. (1) Each water purveyor shall, once a year, test every fire hydrant in its system in order to determine the hydrant's working condition.
(2) Each water purveyor shall formulate and implement a plan for flushing every fire hydrant in the public community water system, and every dead end of a main in the public community water system. This plan for flushing may be combined with the periodic testing of fire hydrants required pursuant to paragraph (1) of this subsection.
d. Each water purveyor shall keep a record of all inspections, tests, and flushings conducted pursuant to this section for a period of at least 12 years.
e. Each water purveyor that owns, solely or jointly, a fire hydrant shall mark each hydrant with the initials of its name, abbreviation of its name, corporate symbol, or other distinguishing mark or code by which ownership may be readily and definitely ascertained. Each fire hydrant shall be marked with a number or symbol, or both, by which the location of the hydrant may be determined on the water purveyor's office records. The markings may be made with a soft metal plate, plastic, or another durable material, and shall be of such size and so spaced and maintained as to be easily read.
f. Each water purveyor shall identify, to the extent possible, the geographic location of each valve and fire hydrant in its public community water system using a global positioning system based on satellite or other location technology.
A water purveyor shall submit a copy of the cybersecurity program developed pursuant to this subsection to the New Jersey Cybersecurity and Communications Integration Cell, in a form and manner as determined by the New Jersey Cybersecurity and Communications Integration Cell. A cybersecurity program submitted pursuant to this subsection shall not be considered a government record under P.L.1963, c.73 (C.47:1A-1 et seq.), and shall not be made available for public inspection.
b. Within 60 days after developing the cybersecurity program required pursuant to subsection a. of this section, each water purveyor shall join the New Jersey Cybersecurity and Communications Integration Cell and create a cybersecurity incident reporting process.
c. (Deleted by amendment, P.L.2021, c.262).
d. No later than 180 days after the effective date of P.L.2021, c.262 (C.58:31-4.1 et al.), each water purveyor shall obtain a cybersecurity insurance policy that meets any applicable standards adopted by the board.
(1) the Framework for Improving Critical Infrastructure Cybersecurity developed by the National Institute of Standards and Technology;
(2) the Center for Internet Security Critical Security Controls for Effective Cyber Defense; or
(3) the International Organization for Standardization and International Electrotechnical Commission 27000 family of standards for an information security management system.
b. Whenever a final revision to one or more of the frameworks listed in subsection a. of this section is published, a water purveyor whose cybersecurity program reasonably conformed to that framework shall revise its cybersecurity program to reasonably conform to the revised framework, and submit a copy of the revised cybersecurity program to the New Jersey Cybersecurity and Communications Integration Cell, no later than 180 days after publication of the revised framework.
c. No later than one year after the effective date of P.L.2021, c.262 (C.58:31-4.1 et al.), and each year thereafter, each water purveyor shall submit to the board, the department , and the New Jersey Cybersecurity and Communications Integration Cell a certification demonstrating that the water purveyor is in compliance with the requirements of this section. The certification shall be made in the form and manner as determined by the department, in consultation with the New Jersey Cybersecurity and Communications Integration Cell. The certification shall be signed by the responsible corporate officer of the public community water system, if privately held, executive director, if an authority, or mayor or chief executive officer of the municipality, if municipally owned, as applicable.
d. The New Jersey Cybersecurity and Communications Integration Cell shall cause to be audited, for compliance with the requirements of section 4 of P.L.2017, c.133 (C.58:31-4) and this section, any public community water system that fails to submit a cybersecurity program as required pursuant to subsection a. of section 4 of P.L.2017, c.133 (C.58:31-4), a revision pursuant to subsection b. of this section, or a certification pursuant to this section. Any audit shall be conducted by a qualified and independent cybersecurity company, at the water purveyor's expense. Following the audit, the water purveyor shall submit the audit and any corrective action plans derived from the audit to the New Jersey Cybersecurity and Communications Integration Cell.
e. A water purveyor shall, upon the request of the board, the department, or the New Jersey Cybersecurity and Communications Integration Cell, provide proof of compliance with the requirements of this section, in a form and manner as determined by the board, the department, or by the New Jersey Cybersecurity and Communications Integration Cell.
f. The board shall update any requirements it has established for cybersecurity programs pursuant to subsection a. of section 4 of P.L.2017, c.133 (C.58:31-4) to conform to the requirements of this section.
(1) any cybersecurity incident that results in the compromise of the confidentiality, integrity, availability, or privacy of the water purveyor's utility billing, communications, data management, or business information systems, or the information thereon; and
(2) any cybersecurity incident against the water purveyor's industrial control system, including monitoring, operations, and centralized control systems, that adversely impact, disable, or manipulate infrastructure, resulting in loss of service, contamination of finished water, or damage to infrastructure.
b. No later than 30 days after receiving a report of a cybersecurity incident from a water purveyor pursuant to subsection a. of this section, the New Jersey Cybersecurity and Communications Integration Cell shall cause to be audited the water purveyor's cybersecurity program and any actions the water purveyor took in response to the cybersecurity incident. The audit shall identify cyber threats and vulnerabilities to the public community water system, weaknesses in the public community water system's cybersecurity program, and strategies to address those weaknesses so as to protect the public community water system from the threat of future cybersecurity incidents. Any audit shall be conducted by a qualified and independent cybersecurity company, at the water purveyor's expense. Following the audit, the water purveyor shall submit the audit and any corrective action plans derived from the audit to the New Jersey Cybersecurity and Communications Integration Cell.
b. The department shall audit, or cause to be audited, for compliance with the requirements of P.L.2017, c.133 (C.58:31-7 et seq.), any public community water system that fails to submit the certification required pursuant to subsection a. of this section in a timely manner. If the department finds that a water purveyor has made a false or misleading statement in a certification submitted pursuant to subsection a. of this section, the department shall forward the matter to the Attorney General for further investigation and, if necessary, criminal prosecution or other appropriate relief, pursuant to any applicable State or federal law, rule, or regulation.
c. The department shall annually audit, or cause to be audited, for compliance with the requirements of P.L.2017, c.133 (C.58:31-7 et seq.) a random selection of at least 10 percent of all public community water systems in the State.
d. The department may require a water purveyor to pay the cost of an audit ordered pursuant to this section.
e. This section shall not be construed to abrogate or limit the review and fiscal oversight authority granted to the Division of Local Government Services in the Department of Community Affairs by the "Local Budget Law," N.J.S.40A:4-1 et seq., the "Local Fiscal Affairs Law," N.J.S.40A:5-1 et seq., the "Local Authorities Fiscal Control Law," P.L.1983, c.313 (C.40A:5A-1 et seq.), or any other law.
(1) a water main renewal program designed to achieve a 150-year replacement cycle, or other appropriate replacement cycle as determined by a detailed engineering analysis of the asset condition and estimated service lives of the water mains serving the public community water system , or by the department ;
(2) a water supply and treatment program designed to inspect, maintain, repair, renew, and upgrade wells, intakes, pumps, and treatment facilities in accordance with all federal and State regulations, standards established by the American Water Works Association, and any mitigation plan required pursuant to section 5 of P.L.2017, c.133 (C.58:31-5); and
(3) any other programs, plans, or provisions as may be required by the department pursuant to rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
Each water purveyor shall dedicate adequate funds on an annual basis to address and remediate the highest priority projects as determined by its asset management plan.
All asset management plans and system condition reports shall be certified to by the licensed operator or professional engineer of the public community water system and the responsible corporate officer of the public community water system, if privately held, executive director, if an authority, or mayor or chief executive officer of the municipality, if municipally owned, as applicable. The replacement cycle shall be determined by dividing the miles of water main located in the public community water system by 150 or other appropriate demonstration set forth in the certified asset management plan prepared pursuant to this section.
b. No later than one year after the effective date of P.L.2021, c.262 (C.58:31-4.1 et al.), and each year thereafter, each water purveyor shall provide to the department and the board, if applicable, a report based on its asset management plan prepared pursuant to subsection a. of this section identifying: (1) the infrastructure improvements completed in the past year and the cost of those improvements, including improvements funded by emergency and routine capital spending; (2) the infrastructure improvements generally planned to be undertaken in the next three years and the estimated cost of those improvements; and (3) the infrastructure improvements that may be required over the next 10 years and the estimated cost of those improvements. A report provided pursuant to this subsection by a municipality, county, or authority that is a water purveyor, is subject to the Local Authorities Fiscal Control Law, P.L.1983, c.313 (C.40A:5A-1 et seq.), and has a capital program extending beyond three years shall also identify infrastructure improvements to be undertaken pursuant to the asset management plan in the remaining years of the capital program, along with the actual or estimated cost of the improvements. Compliance with this subsection may be demonstrated through the submission of evidence of completion of a detailed, comprehensive planning study, facility master planning study, or other long range planning study that is intended for use in developing three- and ten-year capital improvement plans. A detailed comprehensive planning study, facility master planning study, or other long range planning study submitted pursuant to this subsection shall not be considered a government record pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.), and shall not be made available for public inspection. A municipal water department or municipal water authority shall also submit the report required pursuant to this subsection to the Division of Local Government Services in the Department of Community Affairs. A water purveyor shall, upon request, provide a copy of its asset management plan to the department, the board, or the Division of Local Government Services in the Department of Community Affairs.
c. The department, the board, and the Department of Community Affairs shall create a centralized portal allowing for electronic submittal of the report required pursuant to subsection b. of this section. The lack of a centralized portal pursuant to this subsection shall not negate the requirement for a water purveyor to submit a report pursuant to subsection b. of this section.
(1) a comprehensive inventory, mapping, and evaluation of the condition of the public community water system's following asset classes: transmission and distribution piping, valves, service lines, hydrants, water treatment plant facilities, and water supply facilities including wells, reservoirs, and intakes;
(2) level of service goals for the public community water system, based upon industry standards such as those established by the American Water Works Association, which may include, but need not be limited to, goals related to customer service and accountability, energy and water efficiency and conservation, water main breaks and service interruptions, and social and environmental considerations;
(3) a priority order in which the public community water system's assets, identified in the comprehensive inventory prepared pursuant to paragraph (1) of this subsection, will be repaired or replaced as part of the water purveyor's asset management plan, based on each assets' importance to the proper function of the public community water system, or business risk exposure; and
(4) a long-term funding strategy to implement the water purveyor's asset management plan, including funding sources and estimated annual expenditures to address prioritized repairs, upgrades, and treatment.
b. The department shall, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations to implement the requirements of this section.
(1) each mitigation plan submitted by a water purveyor pursuant to section 5 of P.L.2017, c.133 (C.58:31-5), if applicable;
(2) each certification submitted by a water purveyor pursuant to section 6 of P.L.2017, c.133 (C.58:31-6); and
(3) each report submitted by a water purveyor based on its asset management plan pursuant to subsection b. of section 7 of P.L.2017, c.133 (C.58:31-7).
b. The department shall publish the documents required pursuant to subsection a. of this section no later than 30 days after receipt of the documents from a water purveyor.
a. the data submitted by public community water systems pursuant to subsections b. and c. of section 7 of P.L.2017, c.133 (C.58:31-7). The assessment shall include, but need not be limited to, an analysis of the total estimated cost of infrastructure improvements to public community water systems, Statewide, required over the next 10 years; and
b. the compliance of public community water systems with the requirements of P.L.2017, c.133 (C.58:31-1 et seq.) and the rules and regulations adopted pursuant thereto.
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