New Jersey-2018-A870-Introduced

An Act concerning the treatment, storage, processing, and disposal of waste or material from hydraulic fracturing, and supplementing Title 13 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares that the practice of hydraulic fracturing for natural gas exploration and production has been found to use a variety of contaminating chemicals and materials; that the practice uses vast quantities of water mixed with chemicals and solids pumped into shale formations at high pressure to fracture the shale formations; that millions of gallons of contaminated water flow back out of the well; and that the companies engaging in the use of this technique have been less than forthcoming in revealing the mixture of chemicals and their concentrations and volume.

The Legislature further finds and declares that the treatment of wastewater, wastewater solids, sludge, drill cuttings or other byproducts from the hydraulic fracturing process poses financial, operational, health, and environmental risks to the citizens of the State; that the high concentrations of solids present in hydraulic fracturing wastewater and other wastes may include calcium, magnesium, phosphates, nitrates, sulphates, chloride, barium, cadmium, strontium, dissolved organics such as benzene and toluene, and copper, which would interfere with the processes of wastewater treatment plants by inhibiting the anaerobic digestion processes and disrupting the biological digestion processes; that the heavy metals present may precipitate during the treatment process and contaminate biosolids from the plant, which would require expensive decontamination of drying beds or prevent the usual methods for reuse or disposal of those biosolids; and that no federal or State standards have been adopted governing the treatment and disposal of hydraulic fracturing wastes.

The Legislature further finds and declares that in addition to the chemicals and solids used in the well drilling process, the United States Environmental Protection Agency has noted that radioactive materials have been found in hydraulic fracturing wastewater and hydraulic fracturing wastes; that most wastewater treatment plants are not designed to treat for radioactivity; that not only does wastewater contaminated with radionuclides pose a risk to public drinking water supplies if not properly treated, but those radioactive materials may also form deposits over time in equipment and pipes which would cause a health risk to plant workers; and that radioactive materials, as well as heavy metals and other toxic materials, present in hydraulic fracturing wastewater pose a risk of contamination of the treatment plant's biosolids.

The Legislature further finds and declares that in addition to the dangers and uncertainties for wastewater treatment plants, other wastes from the hydraulic fracturing process such as drilling mud, drill cuttings, sludge and concentrated byproducts pose a danger to the environment and the health and safety of the citizens of the State; that the chemical content of wastes from hydraulic fracturing varies based on location of the well and the chemicals injected; that such waste has been exempted from many federal hazardous waste laws even though it contains hazardous materials; that the waste has been sent to landfills and hazardous waste processing or recycling facilities even though some of the waste contains concentrated radioactive liquids, hydrocarbons and toxic pollutants; and that landfills and treatment facilities in the State are not designed to accept or treat radioactive materials.

The Legislature therefore determines, in light of the State's small size, population density, and heavy reliance on surface waters for drinking water purposes, that it is prudent and in the best interest of the health, safety and welfare of the people of the State of New Jersey to require testing and disclosure of the contents and composition of any waste or material generated from the hydraulic fracturing process that is to be treated, stored, processed, or disposed of in the State and to require any facility that accepts waste generated by the process of hydraulic fracturing for treatment, storage, processing, or disposal to obtain a permit therefor, and to provide detailed information to the State concerning the plans, methods, or processes for treating, storing, processing, or disposing of such waste.

2. a. Any waste or material generated from the process of hydraulic fracturing that is transported to a facility for treatment, storage, processing, or disposal shall first be analyzed using mass spectrometry to determine its chemical composition and level of radioactivity.

b. At least five business days prior to delivery at the facility at which the waste or material will be treated, stored, processed, or disposed of, a written report detailing the results of the analysis shall be transmitted to the Department of Environmental Protection and the facility together with the name and identifying information of the generator and the transporter of the material, the name and identifying information of the laboratory at which the analysis was conducted, the person who performed the analysis and prepared the report, and the type and condition of the equipment used.

c. The department shall immediately post the report transmitted pursuant to subsection b. of this section on its website.

3. a. No person shall operate a facility that treats, stores, processes, or disposes of any waste or material generated from the process of hydraulic fracturing without a permit therefor issued by the Department of Environmental Protection pursuant to section 4 of this act.

b. Any facility that accepts waste or material generated from the process of hydraulic fracturing shall provide to the department, at least 30 days prior to accepting the waste or material, the plans, methods, or processes to be followed or used for the treatment, storage, processing, or disposal of the waste or other material and any other information the department deems necessary.

4. a. The Department of Environmental Protection shall establish a permit program to regulate any facility that treats, stores, processes, or disposes of any waste or material generated from the process of hydraulic fracturing.

b. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations that establish standards and criteria for the treatment, storage, processing, and disposal of waste or material generated from the process of hydraulic fracturing. The rules and regulations shall also establish procedures and practices for the operation of any facility that accepts such waste or materials, and shall include, but not be limited to, rules and regulations that are tailored to address the proper handling, treatment, storage, processing, and disposal of radioactive materials and hazardous materials that may be a constituent of the waste or materials. The standards, criteria, procedures, and practices adopted pursuant to this subsection shall protect the public health and safety and the environment.

c. The owner or operator of a facility that treats, stores, processes, or disposes of any waste or material generated from the process of hydraulic fracturing shall apply for a permit for each facility. The application shall be made on forms provided by the department and shall contain any information requested by the department. The department shall not approve the permit application unless it determines that the treatment, storage, processing, and disposal of the waste or material meets the standards, criteria, procedures, and practices adopted by the department pursuant to subsection b. of this section.

d. 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 permit applications, and reasonable annual fees to cover the costs of the administration and enforcement of the permits.

5. a. Whenever, on the basis of available information, the Commissioner of Environmental Protection finds that a person is in violation of the provisions of this act, or any rule or regulation adopted, or permit or order issued, pursuant thereto, the commissioner may:

(1) Issue an administrative enforcement 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 provision of this act, 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 this act, or of the rule, regulation, permit or order of which the person is in violation; (2) citing the action that constituted the violation; (3) requiring compliance with the provision or provisions violated; and (4) 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 this act, 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 this act, or any rule or regulation adopted, or permit or order issued, pursuant thereto, for which legal action under this subsection may have been brought;

(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; or

(5) 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 any violation for which a civil action has been commenced and brought under this subsection. Recovery of damages and costs under this subsection shall be paid to the State Treasurer.

d. The commissioner is authorized to assess a civil administrative penalty of not more than $25,000 for each violation of the provisions of this act, 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 rule or 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 facility owner or operator 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, permit or order 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 this act, or of 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 of Environmental Protection 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 90 days 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 the provisions of this act, or any rule or regulation adopted, or permit or order issued, pursuant thereto, or violates an administrative enforcement 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, representation, or certification 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, and any costs incurred in connection therewith may be recovered, 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 "Penalty Enforcement Law of 1999."

f. A person who purposely, knowingly or recklessly violates any provision of this act, 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 or misleading statement, representation, or certification on any application, record, report, or other document required to be submitted to the department or maintained under any provision of this act, 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, test equipment, or method required to be maintained pursuant to this act, 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 person subject to the provisions of this act shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of this act.

6. a. In addition to the penalties authorized pursuant to section 5 of this act, the Department of Environmental Protection may suspend or revoke any license or permit of any transporter or generator of waste or material generated from the process of hydraulic fracturing, or the license or permit of any facility that agrees to accept or has accepted waste or material generated from the process of hydraulic fracturing upon a finding that a person:

(1) is in violation of this act, or any rule, regulation, permit or order issued pursuant thereto;

(2) knowingly has made any false or misleading statement, representation, or certification on any application, record, report, or other document required to be maintained or submitted to the department;

(3) is in violation of any law, or any rule or regulation or administrative order adopted or issued pursuant thereto, related to pollution of the environment or endangerment of the public health; or

(4) refuses or fails to comply with any lawful order of the department.

b. The department may not suspend or revoke a license or permit pursuant to subsection a. of this section until a violator has been notified by certified mail or personal service. The notice shall:

(1) identify the statutory or regulatory basis of the violation;

(2) identify the specific act or omission constituting the violation;

(3) identify the license or permit to be suspended or revoked; and

(4) affirm the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.

c. 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 department 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 suspending or revoking the license or permit. 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 permit shall become final after the expiration of the 35-day period. Upon a determination of the department that the conduct of the violator is so egregious as to pose an imminent threat to public health, safety, or the environment if the person or facility is allowed to continue operations pending a hearing on a revocation of the license or permit, the department may suspend the license or permit prior to the outcome of the hearing. Any order issued by the department suspending or revoking a license or permit shall provide for the person's obligations regarding the maintenance and preservation of records regarding the generation, transportation, storage, processing, or disposal of waste or material generated from the process of hydraulic fracturing.

7. This act shall take effect immediately.

STATEMENT

This bill would require that as a precondition to the transport of any waste or material generated from the process of hydraulic fracturing to a facility for treatment, storage, processing, or disposal, the waste or material must be analyzed using mass spectrometry to determine its chemical composition and level of radioactivity. The bill would require that at least five business days prior to delivery at the facility at which the waste or material will be treated, stored, processed, or disposed of, a written report detailing the results of the analysis must be transmitted to the Department of Environmental Protection (DEP) and the facility together with the name and identifying information of the generator and the transporter of the material, the name and identifying information of the laboratory at which the analysis was conducted, the person who performed the analysis and prepared the report, and the type and condition of the equipment used. The department must then post the report on its website. The bill also establishes a permit program for facilities that treat, store, process, or dispose of waste or material generated from the process of hydraulic fracturing and requires the owner or operator of any such facility to obtain a permit therefor from the DEP.

The bill also would require any facility that accepts waste or material generated from the process of hydraulic fracturing to provide to the DEP, at least 30 days prior to accepting the waste or material, the plans, methods, or processes to be followed or used for the treatment, storage, processing, or disposal of the waste or other material.

The bill authorizes the DEP to enforce the provisions of this bill through the imposition of civil or civil administrative penalties, by bringing a civil enforcement action, through the issuance of an administrative enforcement order, or by petitioning the Attorney General to bring a criminal action.

Finally, the bill authorizes the department to suspend or revoke any license or permit of any transporter or generator of waste or material generated from the process of hydraulic fracturing, or the license or permit of any facility that agrees to accept or has accepted waste or material generated from the process of hydraulic fracturing, upon a finding that the person:

(1) is in violation of the bill, or any rule, regulation, permit, or order issued pursuant thereto;

(2) knowingly has made any false or misleading statement, representation, or certification on any application, record, report, or other document required to be submitted to the department;

(3) is in violation of any law, or any rule or regulation or administrative order adopted or issued pursuant thereto, related to pollution of the environment or endangerment of the public health; or

(4) refuses or fails to comply with any lawful order of the department.