SENATE, No. 341
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Senator BAER
An Act concerning the handling of certain hazardous materials at transloading facilities, requiring safety reviews thereof, amending P.L.1983, c.401 and P.L.1985, c.415 and supplementing Title 13 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) Sections 1 through 8 of this act shall be known, and may be cited, as the "Transloading Facility Safety Review Act."
2. (New section) The Legislature finds and declares that the storage, transfer, and loading of bulk quantities of certain hazardous materials at transloading facilities incident to their transportation pose risks to public safety potentially comparable to those that exist at chemical plants at which those substances are processed; that while serious accidents at these transportation facilities may be infrequent, there is the potential for significant injury and substantial property damage if certain circumstances obtain; that the personnel at these facilities may not be sufficiently informed about the nature of the materials they handle or the risks they pose, with ways to minimize these hazards, or the steps to take in the event of a serious accident; and that it is therefore necessary and appropriate, in order to fully protect the public health and safety, to require that the risks posed at these facilities be systematically reviewed and addressed accordingly.
3. (New section) As used in this act:
"Commissioner" means the Commissioner of the Department of Transportation;
"Department" means the Department of Transportation;
"Hazardous materials" means hazardous materials in the quantity and under the conditions that placards are required pursuant to the regulations adopted by the federal Department of Transportation pursuant to the "Hazardous Materials Transportation Act," 49 U.S.C. §1801 et seq., or hazardous waste for which a hazardous waste manifest form is required by regulations, adopted by the State Department of Environmental Protection, pursuant to P.L.1970, c.33 (C.13:1D-1 et seq.) except that hazardous materials do not include a petroleum-based fuel commonly used for transportation, heating, or the generation of electricity, including, but not limited to, fuel oil, gasoline, liquefied petroleum gas, propane, or kerosene;
"Transloading facility" means a facility at which hazardous substances are handled or stored incident to their transportation, including railroad yards and sidings, truck terminals, interchange locations, and ports to the extent consistent with federal jurisdiction, but does not include points of origination or destination.
4. (New section) Within 60 days of the effective date of this act, the Department of Transportation, in conjunction with the State Police and in consultation with the Department of Environmental Protection, shall develop and issue a registration form to be completed and submitted within 90 days of the effective date of this act by the owner or operator of each transloading facility in the State. The registration form shall provide, in addition to any other information that may be required by the department, the following: a profile of the area in which the facility is situated, including its proximity to populated areas, chemical plants, emergency response equipment on and off-site, and water supplies; the extent to which the risks and hazardous involved in the handling of these substances have been identified, evaluated, and minimized; and the extent to which personnel have been instructed in the nature of the materials they handle and the risks thereof, and trained to respond to such risks and hazards.
5. (New section) Upon review of all registration and accompanying materials submitted pursuant to section 4 of this act, the department, in consultation with the Department of Environmental Protection, shall adopt rules and regulations governing the handling, storage, and management of hazardous materials at transloading facilities. These rules and regulations may include, but need not be limited to, recommended practices and procedures for on and off-loading hazardous materials, guidelines for the storage of these substances at the facility, requirements for all equipment utilized in the handling of these substances and recommended schedules for their maintenance and replacement; and directions for mandatory training and educational requirements for relevant personnel on the dangers posed by any release of these substances, practices and procedures for their safe handling, and emergency response actions to be taken in the event of a discharge.
6. (New section) Within 90 days after the adoption by the department of regulations governing the handling, storage, and management of hazardous materials at transloading facilities pursuant to section 5 of this act, each owner or operator of a transloading facility registered pursuant to section 4 of this act shall conduct a safety review of the facility and take whatever actions are necessary to bring the facility and its presonnel into compliance with these rules and regulations.
7. (New section) a. The department shall have the right to enter any facility at any time in order to verify compliance with the provisions of this act and the quality of all work performed pursuant to this act, except that facility owners or operators shall be under no obligation to employ any personnel solely to assure access to the facility by the department when this access would otherwise be impossible.
b. The department shall develop and establish, pursuant to regulation, and enforce a system of record keeping, which system shall require the owner or operator of each facility registered pursuant to section 4 of this act to report to the department all safety improvement efforts undertaken pursuant to this act, all ongoing maintenance taken, all unanticipated and unusual events, and other information the department deems appropriate, and which shall be so designed as to prevent the destruction or alteration of information and data contained in those records.
8. (New section) a. The department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent a violation of sections 4 through 7 of this act, or any rule, regulation or order promulgated or issued pursuant thereto.
b. A person who violates the provisions of sections 4 through 7 of this act or any rule, regulation or order promulgated pursuant thereto is liable to a civil administrative penalty of not more than $5,000.00 for the first offense, not more than $10,000,00 for the second offense, and up to $20,000.00 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which it continues constitutes an additional, separate, and distinct offense. No civil administrative penalty shall be levied except subsequent to the notification of the violator by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute the violation; a statement of the amount of the civil penalties to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing and upon a 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 upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment to a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.
c. The department is authorized and empowered to compromise and settle any claim for a penalty under this section in the amount in its discretion as may appear appropriate and equitable under all of the circumstances, including the posting of a performance bond by the violator.
d. A person who violates any of the provisions of sections 4 through 7 of this act, or any rule, regulation, or order promulgated or issued pursuant to subsection b. of this section or a court order issued pursuant to subsection a. of this section or who fails to pay a civil administrative penalty in full pursuant to subsection b. of this section is subject, upon order of the court, to a civil penalty not to exceed $15,000.00 per day of the violation, and each day's continuance of the violation constitutes a separate and distinct violation. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court has jurisdiction to enforce "the penalty enforcement law."
9. Section 5 of P.L.1983, c.401 (C.39:5B-29) is amended to read as follows:
5. a. Any person who violates the provisions of this act or any rule or regulation adopted pursuant thereto shall be subject to a penalty of not less than $50.00 nor more than $5,000.00 for the first offense, nor less than $100.00 nor more than $10,000.00 for the second offense, nor less than $250.00 nor more than $25,000.00 for the third or any subsequent offense. The Department of Transportation is authorized to adopt a schedule of penalties for any specific violation of P.L.1983, c.401 (C.39:5B-25 et seq.) or any rule or regulation adopted pursuant thereto. A penalty imposed pursuant to this act may be collected in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.), or in a summary proceeding before a court of competent jurisdiction wherein injunctive relief has been sought. The State Police and police officers of the Port Authority of New York and New Jersey may issue a summons and complaint returnable in a municipal court or other court of competent jurisdiction for violations of P.L.1983, c.401 (C.39:5B-25 et seq.) and this amendatory and supplementary act or any rule or regulation adopted pursuant thereto. The Department of Transportation may enforce the provisions of this act with respect to railroad car transport of hazardous materials by the making and signing of a complaint and summons for their violation, serving the summons upon the violator, and thereafter filing the complaint promptly with a court having jurisdiction. In addition to the jurisdiction conferred by "the penalty enforcement law," the Law and Chancery Divisions of the Superior Court shall have jurisdiction of proceedings for the enforcement of the penalties provided in this act. The various municipal courts shall have jurisdiction of proceedings for the enforcement of penalties under $5,000.00 provided in P.L.1983, c.401 (C.39:5B-25 et seq.).
b. Penalties imposed pursuant to this act shall in no way reduce or otherwise limit the liability of and person, pursuant to the laws of this State, for cleanup costs or other damages arising from a discharge of hazardous materials.
c. The Superintendent of the State Police, police officers of the Port Authority of New York and New Jersey and personnel of the Department of Transportation and of the Department Environmental Protection duly authorized by the superintendent may, in addition to seeking a civil penalty, seek injunctive relief in the [Chancery Division, General Equity Part of the] Superior Court as to any person found to have violated any provision of P.L.1983, c.401 (C.39:5B-25 et seq.) or this amendatory and supplementary act or any rule or regulation adopted pursuant to either.
d. With respect to violations dealing with motor vehicle equipment and inspection, the provisions and penalties of article 3 of chapter 3 and of chapter 8 respectively of Title 39 of the Revised Statutes and rules and regulations adopted thereunder shall apply rather than the provisions of P.L.1983, c.401 (C.39:5B-25 et seq.), this amendatory and supplementary act and rules and regulations adopted pursuant thereto.
(cf: P.L.1985, c.415, s.5)
10. Section 2 of P.L.1985, c.415 (C.39:5B-31) is amended to read as follows:
2. a. The Superintendent of the State Police may inspect such vehicle's, railroad cars, and places of origin or destination in the State of the hazardous materials being transported as may be necessary to carry out the provisions of P.L.1983, c.401 and this amendatory and supplementary act. The superintendent may also break such cargo seals on vehicles and railroad cars as may be necessary to inspect vehicles and railroad cars transporting hazardous materials to ascertain that packages as defined in 49 C.F.R. §171.8 have been properly classified, described, packaged, marked, labeled, blocked and braced and are in proper condition for shipment.
b. The powers exercised by the superintendent pursuant to this section may also be exercised by police officers of the Port Authority of New York and New Jersey, and by personnel of the Department of Transportation duly authorized by the superintendent. Appropriate personnel of the Department of Environmental Protection duly authorized by the superintendent may, consistent with federal regulations, inspect the contents of packages referred to in subsection a. of this section at places of origin prior to acceptance by the transporter or at places of destination after acceptance by the consignee. In addition, personnel of the Department of Environniental Protection so authorized may conduct, in conjunction with and under the direction of State Police personnel, inspections and break cargo seals as described in subsection a. of this section when at off-highway facilities, including, but not limited to, public truck stops, public rest areas, State weigh stations, and commercial motor vehicle inspection stations. In addition, personnel of the Department of Transportation may, upon probable cause, break cargo seals, and inspect the contents of packages of hazardous materials on railroad cars and at railroad yards and sidings in order to establish or confirm that a violation of the hazardous materials transportation laws, rules, or regulations has been committed.
c. The Commissioner of Transportation is authorized to adopt, in consultation with the Superintendent of the State Police and the Attorney General, and pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations governing inspection and the breaking of cargo seals by those authorized to do so under this section. No person not given specific authority in this section to do so shall break cargo seals under this section or otherwise implement the provisions of this section.
(cf: P.L.1985, c.415, s.2)
11. This act shall take effect immediately.
STATEMENT
This measure would provide for safety reviews at facilities at which hazardous materials are handled or stored incident to their transportation. Specifically, it requires facilities at which certain hazardous materials are handled or stored to register with the Department of Environmental Protection, supplying information about the nature and quantify of the substances handled at the facility, the proximity to risk producing factors, and the training of relevant personnel. It also requires the Department of Transportation, in conjunction with the State Police and in consultation with the Department of Environmental Protection, to develop rules and regulations governing the handling and storage of certain hazardous materials at these facilities, and requires owners and operators thereof to bring their premises, equipment, and personnel into compliance therewith within 90 days.
This bill would also strengthen the powers of the Department of Transportation to enforce existing laws, rules and regulations concerning the transportation of hazardous materials by rail. Specifically, it would authorize the department to issue summonses and complaints for violations of hazardous materials transportation requirements at railroad facilities and to break seals and inspect cargo at such facilities when there are reasonable grounds for suspicion that a violation has been committed.
"The Transloading Facility Safety Review Act."