Bill Text: NJ S2033 | 2010-2011 | Regular Session | Introduced
Bill Title: Clarifies ability of certain contracting units to specify use of inherently safer technologies for contracts involving extraordinarily hazardous substances.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-06-10 - Introduced in the Senate, Referred to Senate Community and Urban Affairs Committee [S2033 Detail]
Download: New_Jersey-2010-S2033-Introduced.html
Sponsored by:
Senator NICHOLAS P. SCUTARI
District 22 (Middlesex, Somerset and Union)
SYNOPSIS
Clarifies ability of certain contracting units to specify use of inherently safer technologies for contracts involving extraordinarily hazardous substances.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning certain contracts involving extraordinarily hazardous substances and amending various parts of the statutory law and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1971, c.198, (C.40A:11-2) is amended to read as follows:
2. As used herein the following words have the following definitions, unless the context otherwise indicates:
(1) "Contracting unit" means:
(a) Any county; or
(b) Any municipality; or
(c) Any board, commission, committee, authority or agency, which is not a State board, commission, committee, authority or agency, and which has administrative jurisdiction over any district other than a school district, project, or facility, included or operating in whole or in part, within the territorial boundaries of any county or municipality which exercises functions which are appropriate for the exercise by one or more units of local government, and which has statutory power to make purchases and enter into contracts awarded by a contracting agent for the provision or performance of goods or services.
The term shall not include a private firm that has entered into a contract with a public entity for the provision of water supply services pursuant to P.L.1995, c.101 (C.58:26-19 et al.).
"Contracting unit" shall not include a private firm or public authority that has entered into a contract with a public entity for the provision of wastewater treatment services pursuant to P.L.1995, c.216 (C.58:27-19 et al.).
"Contracting unit" shall not include a duly incorporated nonprofit association that has entered into a contract with the governing body of a city of the first class for the provision of water supply services or wastewater treatment services pursuant to section 2 of P.L.2002, c.47 (C.40A:11-5.1).
"Contracting unit" shall not include a duly incorporated nonprofit entity that has entered into a contract for management and operation services with a municipal hospital authority established pursuant to P.L.2006, c.46 (C.30:9-23.15 et al.).
(2) "Governing body" means:
(a) The governing body of the county, when the purchase is to be made or the contract or agreement is to be entered into by, or in behalf of, a county; or
(b) The governing body of the municipality, when the purchase is to be made or the contract or agreement is to be entered into by, or on behalf of, a municipality; or
(c) Any board, commission, committee, authority or agency of the character described in subsection (1) (c) of this section.
(3) "Contracting agent" means the governing body of a contracting unit, or its authorized designee, which has the power to prepare the advertisements, to advertise for and receive bids and, as permitted by this act, to make awards for the contracting unit in connection with purchases, contracts or agreements.
(4) "Purchase" means a transaction, for a valuable consideration, creating or acquiring an interest in goods, services and property, except real property or any interest therein.
(5) (Deleted by amendment, P.L.1999, c.440.)
(6) "Professional services" means services rendered or performed by a person authorized by law to practice a recognized profession, whose practice is regulated by law, and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. Professional services may also mean services rendered in the provision or performance of goods or services that are original and creative in character in a recognized field of artistic endeavor.
(7) "Extraordinary unspecifiable services" means services which are specialized and qualitative in nature requiring expertise, extensive training and proven reputation in the field of endeavor.
(8) (Deleted by amendment, P.L.1999, c.440.)
(9) "Work" includes services and any other activity of a tangible or intangible nature performed or assumed pursuant to a contract or agreement with a contracting unit.
(10) "Homemaker--home health services" means at home personal care and home management provided to an individual or members of the individual's family who reside with the individual, or both, necessitated by the individual's illness or incapacity. "Homemaker--home health services" includes, but is not limited to, the services of a trained homemaker.
(11) "Recyclable material" means those materials which would otherwise become municipal solid waste, and which may be collected, separated or processed and returned to the economic mainstream in the form of raw materials or products.
(12) "Recycling" means any process by which materials which would otherwise become solid waste are collected, separated or processed and returned to the economic mainstream in the form of raw materials or products.
(13) "Marketing" means the sale, disposition, assignment, or placement of designated recyclable materials with, or the granting of a concession to, a reseller, processor, materials recovery facility, or end-user of recyclable material, in accordance with a district solid waste management plan adopted pursuant to P.L.1970, c.39 (C.13:1E-1 et seq.) and shall not include the collection of such recyclable material when collected through a system of routes by local government unit employees or under a contract administered by a local government unit.
(14) "Municipal solid waste" means, as appropriate to the circumstances, all residential, commercial and institutional solid waste generated within the boundaries of a municipality; or the formal collection of such solid wastes or recyclable material in any combination thereof when collected through a system of routes by local government unit employees or under a contract administered by a local government unit.
(15) "Distribution" (when used in relation to electricity) means the process of conveying electricity from a contracting unit that is a generator of electricity or a wholesale purchaser of electricity to retail customers or other end users of electricity.
(16) "Transmission" (when used in relation to electricity) means the conveyance of electricity from its point of generation to a contracting unit that purchases it on a wholesale basis for resale.
(17) "Disposition" means the transportation, placement, reuse, sale, donation, transfer or temporary storage of recyclable materials for all possible uses except for disposal as municipal solid waste.
(18) "Cooperative marketing" means the joint marketing by two or more contracting units of the source separated recyclable materials designated in a district recycling plan required pursuant to section 3 of P.L.1987, c.102 (C.13:1E-99.13) pursuant to a written cooperative agreement entered into by the participating contracting units thereof.
(19) "Aggregate" means the sums expended or to be expended for the provision or performance of any goods or services in connection with the same immediate purpose or task, or the furnishing of similar goods or services, during the same contract year through a contract awarded by a contracting agent.
(20) "Bid threshold" means the dollar amount set in section 3 of P.L.1971, c.198 (C.40A:11-3), above which a contracting unit shall advertise for and receive sealed bids in accordance with procedures set forth in P.L.1999, c.440 (C.40A:11-4.1 et al.).
(21) "Contract" means any agreement, including but not limited to a purchase order or a formal agreement, which is a legally binding relationship enforceable by law, between a vendor who agrees to provide or perform goods or services and a contracting unit which agrees to compensate a vendor, as defined by and subject to the terms and conditions of the agreement. A contract also may include an arrangement whereby a vendor compensates a contracting unit for the vendor's right to perform a service, such as, but not limited to, operating a concession.
(22) "Contract year" means the period of 12 consecutive months following the award of a contract.
(23) "Competitive contracting" means the method described in sections 1 through 5 of P.L.1999, c.440 (C.40A:11-4.1 thru 40A:11-4.5) of contracting for specialized goods and services in which formal proposals are solicited from vendors; formal proposals are evaluated by the purchasing agent or counsel or administrator; and the governing body awards a contract to a vendor or vendors from among the formal proposals received.
(24) "Goods and services" or "goods or services" means any work, labor, commodities, equipment, materials, or supplies of any tangible or intangible nature, except real property or any interest therein, provided or performed through a contract awarded by a contracting agent, including goods and property subject to N.J.S.12A:2-101 et seq.
(25) "Library and educational goods and services" means textbooks, copyrighted materials, student produced publications and services incidental thereto, including but not limited to books, periodicals, newspapers, documents, pamphlets, photographs, reproductions, microfilms, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, slides, films, filmstrips, video and magnetic tapes, other printed or published matter and audiovisual and other materials of a similar nature, necessary binding or rebinding of library materials, and specialized computer software used as a supplement or in lieu of textbooks or reference material.
(26) "Lowest price" means the least possible amount that meets all requirements of the request of a contracting agent.
(27) "Lowest responsible bidder or vendor" means the bidder or vendor: (a) whose response to a request for bids offers the lowest price and is responsive; and (b) who is responsible.
(28) "Official newspaper" means any newspaper designated by the contracting unit pursuant to R.S.35:1-1 et seq.
(29) "Purchase order" means a document issued by the contracting agent authorizing a purchase transaction with a vendor to provide or perform goods or services to the contracting unit, which, when fulfilled in accordance with the terms and conditions of a request of a contracting agent and other provisions and procedures that may be established by the contracting unit, will result in payment by the contracting unit.
(30) "Purchasing agent" means the individual duly assigned the authority, responsibility, and accountability for the purchasing activity of the contracting unit, and who has such duties as are defined by an authority appropriate to the form and structure of the contracting unit, pursuant to P.L.1971, c.198 (C.40A:11-1 et seq.) and who possesses a qualified purchasing agent certificate.
(31) "Quotation" means the response to a formal or informal request made by a contracting agent by a vendor for provision or performance of goods or services, when the aggregate cost is less than the bid threshold. Quotations may be in writing, or taken verbally if a record is kept by the contracting agent.
(32) "Responsible" means able to complete the contract in accordance with its requirements, including but not limited to requirements pertaining to experience, moral integrity, operating capacity, financial capacity, credit, and workforce, equipment, and facilities availability.
(33) "Responsive" means conforming in all material respects to the terms and conditions, specifications, legal requirements, and other provisions of the request.
(34) "Public works" means building, altering, repairing, improving or demolishing any public structure or facility constructed or acquired by a contracting unit to house local government functions or provide water, waste disposal, power, transportation, and other public infrastructures.
(35) "Director" means the Director of the Division of Local Government Services in the Department of Community Affairs.
(36) "Administrator" means a municipal administrator appointed pursuant to N.J.S.40A:9-136 and N.J.S.40A:9-137; a business administrator, a municipal manager or a municipal administrator appointed pursuant to the "Optional Municipal Charter Law," P.L.1950, c.210 (C.40:69A-1 et seq.); a municipal manager appointed pursuant to "the municipal manager form of government law," R.S.40:79-1 et seq.; or the person holding responsibility for the overall operations of an authority that falls under the "Local Authorities Fiscal Control Law," P.L.1983, c.313 (C.40A:5A-1 et seq.).
(37) "Concession" means the granting of a license or right to act for or on behalf of the contracting unit, or to provide a service requiring the approval or endorsement of the contracting unit, and which may or may not involve a payment or exchange, or provision of services by or to the contracting unit.
(38) "Index rate" means the rate of annual percentage increase, rounded to the nearest half-percent, in the Implicit Price Deflator for State and Local Government Purchases of Goods and Services, computed and published quarterly by the United States Department of Commerce, Bureau of Economic Analysis.
(39) "Proprietary" means goods or services of a specialized nature, that may be made or marketed by a person or persons having the exclusive right to make or sell them, when the need for such goods or services has been certified in writing by the governing body of the contracting unit to be necessary for the conduct of its affairs.
(40) "Service or services" means the performance of work, or the furnishing of labor, time, or effort, or any combination thereof, not involving or connected to the delivery or ownership of a specified end product or goods or a manufacturing process. Service or services may also include an arrangement in which a vendor compensates the contracting unit for the vendor's right to operate a concession.
(41) "Qualified purchasing agent certificate" means a certificate granted by the director pursuant to section 9 of P.L.1971, c.198 (C.40A:11-9).
(42) "Extraordinarily hazardous substance" or "EHS" means a chemical or chemical compound identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
(43) "Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
(44) "Covered process" means a process that has an EHS present.
(45) "EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
(46) "EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
(47) "EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
(cf: P.L.2009, c.166, s.1)
2. Section 4 of P.L.1999, c.440 (C.40A:11-4.4) is amended to read as follows:
4. The competitive contracting process shall utilize request for proposals documentation in accordance with the following provisions:
a. (1) The purchasing agent or counsel or administrator shall prepare or have prepared a request for proposal documentation, which shall include: all requirements deemed appropriate and necessary to allow for full and free competition between vendors; information necessary for potential vendors to submit a proposal; and a methodology by which the contracting unit will evaluate and rank proposals received from vendors.
(2) If contained in the governing body resolution authorizing the use of competitive contracting pursuant to section 3 of P.L.1999, c.440 (C.40A:11-4.3), request for proposal documentation for the provision or performance of goods or services involving the generation, storage, or handling of an extraordinarily hazardous substance may restrict, condition or limit the award of the contract to prospective vendors that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
b. The methodology for the awarding of competitive contracts shall be based on an evaluation and ranking, which shall include technical, management, and cost related criteria, and may include a weighting of criteria, all developed in a way that is intended to meet the specific needs of the contracting unit, and where such criteria shall not unfairly or illegally discriminate against or exclude otherwise capable vendors. When an evaluation methodology uses a weighting of criteria, at the option of the contracting unit the weighting to be accorded to each criterion may be disclosed to vendors prior to receipt of the proposals. The methodology for awarding competitive contracts shall comply with such rules and regulations as the director may adopt, after consultation with the Commissioner of Education, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. At no time during the proposal solicitation process shall the purchasing agent or counsel or administrator convey information, including price, to any potential vendor which could confer an unfair advantage upon that vendor over any other potential vendor. If a purchasing agent or counsel or administrator desires to change proposal documentation, the purchasing agent or counsel or administrator shall notify only those potential vendors who received the proposal documentation of any and all changes in writing and all existing documentation shall be changed appropriately.
d. All proposals and contracts shall be subject to the provisions of section 1 of P.L.1977, c.33 (C.52:25-24.2) requiring submission of a statement of corporate ownership and the provisions of P.L.1975, c.127(C.10:5-31 et seq.) concerning equal employment opportunity and affirmative action.
(cf: P.L.1999, c.440, s.4)
3. Section 2 of P.L.2007, c.332, (C.40A:11-9.1) is amended to read as follows:
2. The State Treasurer, through the Division of Purchase and Property, in consultation with the Department of Environmental Protection and any other appropriate State agencies, shall develop a list of sources for green product purchasing by contracting units, and provide regular revisions of the list, on the Internet web page of the Department of the Treasury and shall have the authority to specify appropriate and reasonable standards for the identification of a list of sources for green products. The list of sources for green product purchasing shall set forth commodities and services that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
(cf: P.L.2007, c.332, s.2)
4. Section 13 of P.L.1971, c.198, (C.40A:11-13) is amended to read as follows:
13. Specifications. Any specifications for the provision or performance of goods or services under this act shall be drafted in a manner to encourage free, open and competitive bidding. In particular, no specifications under this act may:
(a) Require any standard, restriction, condition or limitation not directly related to the purpose, function or activity for which the contract is awarded; or
(b) Require that any bidder be a resident of, or that the bidder's place of business be located in, the county or municipality in which the contract will be awarded or performed, unless the physical proximity of the bidder is requisite to the efficient and economical performance of the contract; except that no specification for a contract for the collection and disposal of municipal solid waste shall require any bidder to be a resident of, or that the bidder's place of business be located in, the county or municipality in which the contract will be performed; or
(c) Discriminate on the basis of race, religion, sex, national origin, creed, color, ancestry, age, marital status, affectional or sexual orientation, familial status, liability for service in the Armed Forces of the United States, or nationality; or
(d) Require, with regard to any contract, the furnishing of any "brand name," but may in all cases require "brand name or equivalent," except that if the goods or services to be provided or performed are proprietary, such goods or services may be purchased by stipulating the proprietary goods or services in the bid specification in any case in which the resolution authorizing the contract so indicates, and the special need for such proprietary goods or services is directly related to the performance, completion or undertaking of the purpose for which the contract is awarded; or
(e) Fail to include any option for renewal, extension, or release which the contracting unit may intend to exercise or require; or any terms and conditions necessary for the performance of any extra work; or fail to disclose any matter necessary to the substantial performance of the contract.
Any specification which knowingly excludes prospective bidders by reason of the impossibility of performance, bidding or qualification by any but one bidder, except as provided herein, shall be null and void and of no effect and shall be readvertised for receipt of new bids, and the original contract shall be set aside by the governing body.
Any specification for a contract for the collection and disposal of municipal solid waste shall conform to the uniform bid specifications for municipal solid waste collection contracts established pursuant to section 22 of P.L.1991, c.381 (C.48:13A-7.22).
Any specification may include an item for the cost, which shall be paid by the contractor, of creating a file to maintain the notices of the delivery of labor or materials required by N.J.S.2A:44-128.
Any prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the contracting agent no less than three business days prior to the opening of the bids. Challenges filed after that time shall be considered void and having no impact on the contracting unit or the award of a contract.
Any specifications for the provision or performance of goods or services involving the generation, storage, or handling of an extraordinarily hazardous substance may restrict, condition or limit the award of the contract to prospective bidders that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
(cf: P.L.1999, c.440, s.19)
5. R.S.58:5-20 is amended to read as follows:
58:5-20. 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.
Plans and specifications for work to be performed or material to be furnished involving the generation, storage, or handling of an extraordinarily hazardous substance may restrict, condition or limit the award of the contract to prospective bidders that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
For the purposes of this section:
"Extraordinarily hazardous substance" or "EHS" means a chemical or chemical compound, in the quantities indicated, identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
"Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
"Covered process" means a process that has an EHS present.
"EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
"EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
"EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
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.
(cf: P.L.1985, c.469, s.15)
6. R.S.58:14-22 is amended to read as follows:
58:14-22 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.
Specifications for work to be performed or material to be furnished involving the generation, storage, or handling of an extraordinarily hazardous substance may restrict, condition or limit the award of the contract to prospective bidders that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
For the purposes of this section:
"Extraordinarily hazardous substance" means a chemical or chemical compound identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
"Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
"Covered process" means a process that has an EHS present.
"EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
"EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
"EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
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.).
(cf: P.L.1985, c.452, s.3)
7. Section 3 of P.L.1985, c.37 (C.58:26-3) is amended to read as follows:
3. 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;
h. "Extraordinarily hazardous substance" means a chemical or chemical compound identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list;
i. "Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority;
j. "Covered process" means a process that has an EHS present;
k. "EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation;
l. "EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release;
m. "EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
(cf: P.L.1985, c.37, s.3)
8. Section 6 of P.L.1985, c.37 (C.58:26-6) is amended to read as follows:
6. Upon submitting the notices of intent pursuant to section 5 of [this act] P.L.1985, c.37 (C.58:26-5), 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. The request for qualifications may require that a vendor proposing to enter into a contract for the provision of water supply services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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.
(cf: P.L.1985, c.37, s.6)
9. Section 8 of P.L.1985, c.37 (C.58:26-8) is amended to read as follows:
8. Upon selecting the qualified vendors pursuant to section 7 of [this act] P.L.1985, c.37 (C.58:26-7), 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 may require that a vendor proposing to enter into a contract for the provision of water supply services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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.
(cf: P.L.1985, c.37, s.8)
10. Section 3 of P.L.1995, c.101 (C.58:26-21) is amended to read as follows:
3. As used in sections 1 through 8 of P.L.1995, c.101 (C.58:26-19 et seq.):
"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.).
"Extraordinarily hazardous substance" means a chemical or chemical compound identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
"Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
"Covered process" means a process that has an EHS present.
"EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
"EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
"EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
(cf: P.L.1995, c.101, s.3)
11. Section 5 of P.L.1995,c.101 (C.58:26-23) is amended to read as follows:
5. a. A public entity shall publish notice of its intent to enter into a contract pursuant to P.L.1995, c.101 (C.58:26-19 et al.) in at least one newspaper of general circulation in the jurisdiction or service area that will receive water supply services under the terms of a contract and one newspaper of broad regional circulation, at least 60 days prior to conducting the public hearing required under section 6 of P.L.1995, c.101 (C.58:26-24). In addition, a public entity that intends to enter into a contract with a private firm for the provision of water supply services shall notify in writing the board, department and division of its intent.
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 proposal document may require that a private firm proposing to enter into a contract for the provision of water supply services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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. 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.
(cf: P.L.1995, c.101, s.5)
12. Section 3 of P.L.1985, c.72 (C.58:27-3) is amended to read as follows:
3. 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.
h. "Extraordinarily hazardous substance" means a chemical or chemical compound identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
i. "Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
j. "Covered process" means a process that has an EHS present.
k. "EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
l. "EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
m. "EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
(cf: P.L.1985, c.72, s.3)
13. Section 6 of P.L.1985, c.72 (C.58:27-6) is amended to read as follows:
6. Upon submitting the notices of intent pursuant to section 5 of [this act] P.L.1985, c.72 (C.58:27-5), 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 may require that a vendor proposing to enter into a contract for the provision of wastewater treatment services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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.
(cf: P.L.1985, c.72, s.6)
14. Section 8 of P.L.1985, c.72 (C.58:27-8) is amended to read as follows:
8. Upon selecting the qualified vendors pursuant to section 7 of [this act] P.L.1985, c.72 (C.58:27-7), 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 may require that a vendor proposing to enter into a contract for the provision of wastewater treatment services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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.
(cf: P.L.1985, c.72, s.8)
15. Section 3 of P.L.1995, c.216 (C.58:27-21) is amended to read as follows:
3. As used in sections 1 through 9 of P.L.1995, c.216 (C.58:27-19 through 58:27-27):
"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;
"Covered process" means a process that has an EHS present;
"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;
"Extraordinarily hazardous substance" or "EHS" means a chemical or chemical compound, in the quantities indicated, identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list;
"EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release;
"EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment;
"EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation;
"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;
"Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority;
"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.
(cf: P.L.1995, c.216, s.3)
16. Section 5 of P.L.1995, c.216 (C.58:27-23) is amended to read as follows:
5. a. A public entity shall publish notice of its intent to enter into a contract pursuant to P.L.1995, c.216 (C.58:27-19 et al.) in at least one newspaper of general circulation in the jurisdiction or service area that will receive wastewater treatment services under the terms of the contract and one newspaper of broad regional circulation, at least 60 days prior to conducting the public hearing required under section 6 of P.L.1995, c.216 (C.58:27-24).
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 proposal document may require that a private firm or a public authority proposing to enter into a contract for the provision of wastewater treatment services involving the generation, storage, or handling of an extraordinarily hazardous substance shall incorporate the principles or techniques of inherently safer technologies to minimize or eliminate the potential of an extraordinarily hazardous substance release. 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.
(cf: P.L.1995, c.216, s.5)
17. (New section) Notwithstanding any provision of law to the contrary, whenever a state contracting agency prepares plans, specifications or bid proposal documents of any kind for work to be performed or material to be furnished that involves the generation, storage, or handling of an extraordinarily hazardous substance, the state contracting agency may include in those plans, specifications or bid proposal documents provisions that restrict, condition or limit the award of the contract to prospective bidders that minimize or eliminate the potential of an extraordinarily hazardous substance release by incorporating the principles or techniques of inherently safer technologies.
For the purposes of this section:
"Extraordinarily hazardous substance" or "EHS" means a chemical or chemical compound, in the quantities indicated, identified in subsection a. of section 4 of P.L.1985, c.403 (C.13:1K-22) on the initial extraordinarily hazardous substance list.
"Inherently safer technology" means the principles or techniques that can be incorporated in a covered process to minimize or eliminate the potential for an EHS release and that have been determined to be feasible in accordance with rules and regulations promulgated by the Department of Environmental Protection pursuant to the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.) and any other applicable source of authority.
"Covered process" means a process that has an EHS present.
"EHS release" means a discharge or emission of an EHS from a piece of EHS equipment in which it is contained, excluding discharges or emissions occurring pursuant to and in compliance with the conditions of any State permit or regulation.
"EHS accident" means an unplanned, unforeseen or unintended incident, situation, condition, or set of circumstances which directly or indirectly results in an EHS release.
"EHS equipment" means that equipment within a covered process whose failure or improper operation could directly or indirectly result in or contribute to an EHS accident, including, but not limited to, vessels, piping, compressors, pumps, instrumentation and electrical equipment. EHS equipment includes fire suppression, risk mitigation, EHS release detection equipment, and EHS shipping container handling equipment.
"State contracting agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality created by a principal department.
18. This act shall take effect immediately.
STATEMENT
This bill protects against potential releases of extraordinarily hazardous substances (EHS) by clarifying the authority of public entities to ensure that contracts involving the generation, storage, or handling of an EHS are awarded to firms that use inherently safer technologies (ISTs). ISTs are principles or techniques that can minimize or eliminate the potential of an EHS release and that have been determined to be feasible by the Department of Environmental Protection.
The "Toxic Catastrophe Prevention Act," P.L.1985, c. 403 (C.13:1K-19 et seq.), lists seven chemicals or chemical compounds, in specified quantities, as extraordinarily hazardous substances: hydrogen chloride (HCl) and allyl chloride in quantities of 2,000 pounds or more; hydrogen cyanide (HCN), hydrogen fluoride (HF), chlorine (Cl2), phosphorus trichloride, and hydrogen sulfide (H2S) in quantities of 500 pounds or more; and phosgene, bromine, methyl isocyanate (MIC), and toluene-2, 4-diisocyanate (TDS) in quantities of 100 pounds or more. By clarifying the ability of public entities to limit the pool of eligible contractors to those that utilize ISTs, this bill will encourage public entities to include IST standards in their qualifications and specifications and result in safer public projects. Furthermore, by clarifying the ability of public entities to specify the use of ISTs as a condition for a private firm's eligibility for a public contract, the bill will encourage private firms that have not adopted these technologies to do so which will result in enhancing the safety of public and private projects alike.
Specifically, the bill would apply to contracting units entering into contracts pursuant to the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.), the "New Jersey Water Supply Privatization Act," P.L.1985, c.37 (C. 58:26-1 et seq.), the "New Jersey Water Supply Public-Private Contracting Act," P.L.1995, c.101 (C.58:26-19 et seq.), the "New Jersey Wastewater Treatment Privatization Act," P.L.1985, c.72, (C.58:27-1 et seq.), the "New Jersey Wastewater Treatment Public-Private Contracting Act." P.L.1995, c.216 (C.58:27-19 through 58:27-27) as well as to the North Jersey District Water Supply Commission, R.S.58:5-1 et seq., the Passaic Valley Sewerage Commissioners, R.S.58:14-1 et seq., and the State of New Jersey.
