A2828

ASSEMBLY, No. 2828

STATE OF NEW JERSEY

211th LEGISLATURE

INTRODUCED MAY 17, 2004

Sponsored by:

Assemblyman PATRICK DIEGNAN, JR.

District 18 (Middlesex)

Assemblyman JON M. BRAMNICK

District 21 (Essex, Morris, Somerset and Union)

Co-Sponsored by:

Assemblymen Munoz and Barnes

SYNOPSIS

Prohibits State purchase of creosote or creosote-treated wood.

CURRENT VERSION OF TEXT

As introduced.

An Act concerning the purchase of creosote or creosote-treated wood, and supplementing Title 52 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 creosote, commonly used as a wood preservative to repel insects and prevent rot and water damage of wood and wooden structures, is a hazardous substance, is recognized by the Environmental Protection Agency (EPA) as a carcinogen and regulated by the EPA as a restricted-use pesticide, and is composed of over 300 chemicals known to pose a threat to the environment and human health; that leakage of creosote from industrial and other hazardous waste sites and seepage from in-use creosote-treated wood have led to the contamination of soil and groundwater; and that ingestion of water, plant material, or animal tissues contaminated with creosote or absorption of creosote through the skin may result in skin irritation, chemical burns, convulsions and mental confusion, liver or kidney disease, unconsciousness, damage to the nervous or reproductive systems, development of skin cancer, or in extreme cases, death.

The Legislature therefore determines that it is in the public interest to reduce and eventually end the use of creosote; and that the State can contribute to these goals by ending State purchases of creosote and creosote-treated wood.

2. As used in this act:

"Commissioner" means the commissioner of a State department, or the commissioner's designee;

"Creosote" means the substance produced by the high temperature treatment of coal tar and used primarily as a wood preservative;

"Creosote-treated wood" means any lumber product impregnated with or containing creosote;

"Director" means the Director of the Division of Purchase and Property in the Department of the Treasury or the Director of the Division of Property Management and Construction in the Department of the Treasury or both;

"Independent State authority" means a body, public and corporate, created by law, which provides that the public body so created has at least the powers to adopt and use a corporate seal, to sue and be sued, to acquire and hold real property for its purposes, and to provide for and secure the payment of its bonds or other obligations;

"Public works" means any public building or other public betterment, work, or improvements constructed, repaired or improved wholly or in part at the expense of the public, including sign posts and railroad crossties; and

"State department" means a principal department in the Executive Branch of the State Government.

3. a. Notwithstanding the provisions of any other law to the contrary, on or after the effective date of this act, the Director of the Division of Purchase and Property in the Department of the Treasury, the Director of the Division of Property Management and Construction in the Department of the Treasury, or the commissioner of a State department shall not enter into or renew any contract with any individual or business entity for the purchase of goods or services, including but not limited to a contract for the construction, improvement, or maintenance of any public work, that requires the use of creosote or creosote-treated wood, wholesale or retail, in any form. In addition, where a contract entered into prior to the effective date of this act allows either the director or the commissioner of a State department to exercise discretion with regard to future purchases under the contract, the director or commissioner, as appropriate, shall not purchase or accept creosote or creosote-treated wood, wholesale or retail, in any form, pursuant to that contract. The provisions of this section shall also apply to any purchase of goods or services not made pursuant to a contract.

In preparing the specifications for any contract for the purchase of goods or services, including but not limited to a contract for the construction, improvement, or maintenance of any public work, the Director of the Division of Purchase and Property, the Director of the Division of Property Management and Construction, or the commissioner of a State department shall not require or permit the use of creosote or creosote-treated wood, and shall include in the invitation to bid, where relevant, a statement that any response to the invitation that proposes or calls for the use of creosote or creosote-treated wood shall be deemed to be unresponsive. Any such contract that in any way involves the use of wood or wood products shall include the following as a material condition of the contract:

"Except as expressly permitted pursuant to P.L. , c. C. (now before the Legislature as this bill), the contractor shall not provide any items to the State in performance of this contract that contain creosote or creosote-treated wood."

b. The provisions of subsection a. of this section shall not apply to:

(1) Any binding contractual obligations for the purchase of goods or services entered into prior to the effective date of this act;

(2) Bid packages advertised and made available to the public, or to any competitive and sealed bids received by the State, prior to the effective date of this act; or

(3) Any amendment, modification, or renewal of a contract, which contract was entered into prior to the effective date of this act, where the application would delay timely completion of a project or involve an increase in the total moneys to be paid by the State under that contract.

4. a. Whenever the Director of the Division of Purchase and Property, the Director of the Division of Property Management and Construction, or the commissioner of a State department, including but not limited to contracts for the construction, improvement, or maintenance of any public work, discovers, after an investigation by either the director or commissioner, as appropriate, and the Attorney General, that a person or entity being considered for a contract or under contract with the State or any State department has, in connection with the bidding, execution, or performance of the contract, falsely represented the nature or certification status of creosote-treated wood product offered, used, or supplied under the contract, or provided creosote or creosote-treated wood in violation of this act, any rules and regulations adopted pursuant to this act, or any contract provisions pertaining to the prohibition of the use or purchase of creosote or creosote-treated wood, either director or the commissioner, as appropriate, may impose sanctions or take other actions designed to ensure compliance with the provisions of this act, which may include, but are not limited to:

(1) Refusal to certify the award of a contract;

(2) Suspension of a contract;

(3) Ordering the withholding of funds due the contractor;

(4) Ordering the revision of a contract based upon a material breach of contract provisions or pertaining to representations made in bidding, execution, or performance of the contract; and

(5) Disqualification of a bidder or contractor from eligibility for providing goods or services to the State for a period not to exceed five years, with a right to review and reconsideration after two years upon a showing of corrective action indicating violations are not likely to reoccur.

b. A contract subject to the provisions of this act shall provide that in the event any bidder or contractor fails to comply in good faith with any of the provisions of this act, the bidder or contractor shall be liable for liquidated damages in an amount equal to the bidder's or contractor's net profit under the contract, or five percent of the total amount of the contract, whichever is greater. All contracts shall also contain a provision whereby the bidder or contractor acknowledges and agrees that the liquidated damages assessed shall be payable upon demand and may be set off against any moneys due the bidder or contractor.

5. This act shall not apply to any independent State authority.

6. The director shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to implement the provisions of this act.

7. Section 6 of this act shall take effect immediately and the remainder of the act shall take effect six months following the date of enactment.

STATEMENT

This bill would prohibit Executive Branch State departments from purchasing creosote or creosote-treated on or after the effective date of this act.

Specifically, the bill prohibits the Director of the Division of Purchase and Property in the Department of the Treasury, the Director of the Division of Property Management and Construction in the Department of the Treasury, and the commissioner of any State department from entering into contracts for the provision of services that require the use of creosote or creosote-treated wood. This prohibition would not apply when bids have been made or contracts entered into prior to the effective date of this act.

The bill also provides that contracts with the State would be required to contain an express condition that the contractor shall not provide creosote or creosote-treated wood. Upon a finding that a person has falsely represented the nature or certification status of creosote-treated wood offered, used, or supplied under a contract, or provided the State with creosote or creosote-treated wood in violation of the act, the Director of the Division of Purchase and Property, the Director of the Division of Property Management and Construction, or the commissioner of a State department, as appropriate, would have authority to impose various contract-related sanctions. These sanctions include, but are not limited to, the refusal to certify the award of a contract, suspension of the contract, the withholding of funds due to the contractor, ordering a revision of the contract, and disqualifying the bidder or contractor from eligibility for providing goods or services to the State for a period not to exceed five years. Disqualified bidders or contractors would have the right to reconsideration after two years upon a showing of corrective action indicating violations are not likely to reoccur.

The bill would also require that contracts with the State contain provisions subjecting contractors to liability for liquidated damages for failure to comply in good faith with the provisions of the bill.

Finally, this bill shall not apply to any independent State authority.

The phase-out in the State use of creosote and creosote-treatedwood is intended to decrease the threat that creosote, a recognized carcinogen and component of at least 33 National Priority List hazardous waste sites, poses to the environment and to human health.