Governor Murphy Announces Support for Key Environmental Justice Legislation.

New Jersey Governor Phil Murphy recently announced his support for key environmental justice legislation for overburdened communities. The legislation (S232) requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate environmental and public health impacts of certain facilities on “overburdened communities” when reviewing certain permit applications.

The proposed legislation that passed the Senate the end of June now goes to the Assembly for further consideration and voting and, if it passes the Assembly as well, could be signed into law by Governor Phil Murphy later this summer.  Similar legislation has been pending in New Jersey for more than a decade.

The key components of the proposed legislation are:

• Preparation of an Environmental Justice Impact Statement.  Applicants for certain permits would be required to prepare an “environmental justice impact statement.”  This statement would need to “assess” the potential environmental and public health stressors associated with the proposed new or expanded facility, . . . including any adverse environmental or public health stressors that cannot be avoided if the permit is granted, and the environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.”
• Public Notice and Hearing.  Applicants would then be required to provide the environmental justice impact statement to the NJDEP and other governmental entities, which in turn would disseminate the statement to the public.  Applicants also would need to organize and hold a public hearing in the overburdened community.  A transcript of the hearing and a record of any comments received from the public would then be provided to the NJDEP.
• Consideration of Environmental Justice Impacts by NJDEP; Requirement to Deny Permit Based on Environmental Impact.  After reviewing the environmental justice impact statement and the input from the public, the NJDEP would be required to deny a permit, or apply new conditions to the renewal of an existing permit, “upon a finding that approval of the permit . . . would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department pursuant to rule, regulation, or guidance.”

1. 1. The exact meaning and implementation of this requirement is not clear. It seems to place a high threshold on the expansion or construction of any facility that would negatively impact the environment in an overburdened community.  It is particularly important to note that the legislation requires the NJDEP to consider the “cumulative”impact of the facility on the community.  It further remains to be seen if facilities can offset negative environmental impacts through modifications to the design and operation of subject facilities.

Those facilities, permits and communities subject to the legislation include:

The application of the proposed legislation is governed by the definitions of “facility,” “permit,” and “overburdened community.”

• Facility.  The legislation defines “facility” as “any:  (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor, or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facility; (7) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; or (8) medical waste incinerator.”
• Permit.  It defines “permit” as “any individual permit, registration, or license” issued under numerous state laws, including  . . . the Solid Waste Management Act, the New Jersey Statewide Mandatory Source Separation and Recycling Act, the Freshwater Wetlands Protection Act, P.L.1987, the Coastal Area Facility Review Act, the Highlands Water Protection and Planning Act, the Air Pollution Control Act, the Water Pollution Control Act, the Flood Hazard Area Control Act, and others.  Notably, the definition includes only individual permits, which as the name suggests contain requirements specifically tailored to the individual facility.  As a result, the definition does not include general permits or other standardized permits, which contain standard requirements and are available to facilities that meet certain pre-determined criteria.  Additionally, the current definition does not reference permits issued under the Industrial Site Recovery Act, the Site Remediation Reform Act, or any other New Jersey statutes directly applicable to site remediation.  This is a change from a prior version of the legislation, which included a specific reference to the Industrial Site Recovery Act, and limits the scope of “permit” significantly in a way that should be welcomed by the regulated community.
• Overburdened Community.  Lastly, the legislation defines “overburdened community” as “any census block group . . . in which:  (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.”  According to NJ Spotlight, “the bill’s definition of ‘overburdened communities,’ could apply to more than 300 municipalities and over 4 million residents.”

Current status of the proposed legislation is?

As noted above, the New Jersey Senate passed the proposed legislation on June 29, 2020.  The legislation now has been referred to the Assembly, and is scheduled for a hearing on July 20^th before the Assembly Environment and Solid Waste Committee.  Interested parties should be able to observe and testify at the hearing through virtual means.  It is possible that the Assembly could pass the proposed legislation later this summer, especially given the high profile support referenced above.

DMGS will be tracking this legislation closely. Should it become law, the operative provisions would go into effect after a period of six months- passage would undoubtedly significantly and dramatically change the permitting process for the regulated community in New Jersey.

 

NJ Governor Murphy Signs Law Permitting Remote Meetings for Nonprofits

On April 14, 2020, New Jersey Governor Phil Murphy signed into law a bill (S2342) to permit members of nonprofit corporations to participate in meetings by means of remote communication, and to further permit nonprofit corporations to hold members’ meetings in part or solely by means of remote communication during a state of emergency declared by the Governor, with immediate effect.  The bill passed both houses of the New Jersey State Legislature unanimously on April 13, 2020.

Prior to this, the New Jersey Nonprofit Corporation Act required meetings of members of nonprofit corporations to be held at a physical location, and there was no provision for members to participate by means of remote communication at all.  Under the new law, so long as the board of trustees authorizes and adopts guidelines and procedures governing such a meeting, a meeting of members may be held during a state of emergency solely by means of remote communication. Members participating in such a meeting shall be deemed present in person and entitled to vote at such meeting, regardless of whether the meeting is held at a designated place or solely by means of remote communication.  The nonprofit corporation is also required to implement reasonable measures in connection with any members’ meeting conducted in part or solely by means of remote communication to:

(i) verify that each person participating remotely is a member or proxy of a member,

(ii) provide each member participating remotely with a reasonable opportunity to participate in the meeting; and,

(iii) record and maintain a record of any member votes or other actions taken by remote communication at the meeting.  This bill is based on the amendments made to the New Jersey Business Corporation Act with respect to shareholders’ meetings.

The COVID-19 pandemic requires adaptation to changing conditions. We at Duane Morris Government Strategies (DMGS) are here for you and anyone in need in our community, and we wish each of you the best as we all work through the challenges that are presented.

Soil and Fill recyclers must file an administratively complete A -901 license application with the Office of the Attorney General on or before October 19, 2020.

A new law requires soil and fill recycling businesses (all businesses engaged in the collection, transportation, processing, brokering, storage, purchase, sale or disposition of soil and fill recyclable materials) to go through what is commonly called “the A-901” solid waste licensing program.
Pursuant to legislation at S1683, any business concern that: (1) does not already hold a valid New Jersey A901 license and; (2) is currently engaged in or otherwise provides soil and fill recycling services in New Jersey must complete a:
• registration form and file it with the New Jersey Department of Environmental Protection (Department) by April 20, 2020 to obtain a Soil and Fill Recycling Registration, and;
• an administratively complete soil and fill recycling license application with the Office of the Attorney General on or before October 19, 2020. (Commonly called the A-901 License application).
Failure to timely file this Soil and Fill Recycling Registration Form by April 20, 2020 will render your company unauthorized by law to provide soil and fill recycling services. Failure to file an administratively complete soil and fill recycling license application by October 19, 2020 will automatically render the Soil and Fill Recycling Registration expired and invalid.
The A-901 application is a detailed, time-consuming, disclosure form with many questions that cover a wide variety of topics. It is important to answer all application questions thoroughly and completely, as the State will follow up on any incomplete questions, which could delay issuance of the license. While the process to apply for an A-901 license is long (on average 12 months or longer), our experience has provided several practical considerations that can make the process smoother:
The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even remote investors must completely fill out these forms.
While seemingly intrusive, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, which includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
During the background check by the New Jersey State Police, be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about a bench warrant for a long unpaid parking ticket; an affidavit from the applicant explaining that he lived in Europe at the time and that he did not own the car in question kept the background check on track.
Make sure the business is in good standing, including with the Division of Taxation.
Finally, if the application passes muster, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an Advisor that has been involved in the A-901 application process and that will be available to complete this step will also help to efficiently navigate the process. Without eventual A-901 approval soil and fill recycling operators, transporters, brokers and consultants will be prohibited from conducting their soil and recycling operations in New Jersey.

Expanded A-901 Requirements Coming Soon? Salespeople, Consultants and Soil Recyclers Should Prepare.

On June 20, 2019, the New Jersey Legislature began moving a bill (S1683/A4267), that would expand the scope of A-901 requirements to a broader range of persons involved in the solid waste industry, including salespeople and consultants. The bill also would subject persons or companies engaged in soil and fill recycling services to the same regulation as those engaged in the business of solid waste.
This proposed legislation passed the Senate unanimously on June 20, 2019 and is now pending before the Assembly.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
One of the most time-consuming aspects of solid waste licensing is obtaining A-901 approval. The “A901” currently does not apply to those involved in recycling. The A-901 program was adopted many years ago in response to the infiltration of organized crime into the solid waste business to ensure those conducting the business of solid waste in New Jersey have the requisite integrity, reliability, expertise and competence. There are some limited exceptions to A-901 licensing requirements for self-generators of solid waste and Licensed Site Remediation Professionals who manage solid and hazardous waste in connection with remediation projects.
While the process to apply for an A-901 license is long (on average 18 months or longer), our experience has provided several practical considerations that can make the process smoother:

• The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even equity, private and remote investors must completely fill out these forms. Moreover, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, that includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
• The New Jersey State Police are obligated to do a background check on applicants. So be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about long unpaid motor vehicle citations; an affidavit from the applicant explaining that were out of the country at the time and did not own the car in question kept channeled and constrained the background check keeping things on track. In another instance a longstanding litigation unrelated to current business operations came up. By settling the matter the background check stayed on course.
• Make sure the business is in good standing, including with the Division of Taxation.

Finally, if the applicant is qualified”, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an attorney that has been involved in the A-901 application and that will be available to complete this step will also help to efficiently navigate the process.
For more information, please contact the author or any Government Affairs Advisor at DMGS.

How Effective Target Setting Can Impact a Grassroots Campaign

Duane Morris Government Strategies, LLC
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Attorney and businessman Martin Milita is graduate of the Temple University School of Law, and served as the chief executive officer of Fiore Group Companies, Inc. from 1996 to 2001. Currently, Martin Milita serves as senior director at Duane Morris Government Strategies, LLC, a company that provides a full range of government relations and public affairs services such as grassroots campaigning.

A grassroots campaign is usually undertaken by an organization seeking to impact pending legislation. Because the main objective of a grassroots campaign is to get legislators to take notice of the campaign’s message, some lobbyists may rely on large numbers and loud voices. However, a reliance on these factors may defeat the overall purpose of the campaign.

One of the things that lobbyists must observe in conducting grassroots campaign is effective target setting. Phone calls and mailing in large numbers may be effective if all supporters can actively participate in the campaign, but that is not always the case. Otherwise, lobbyists should target the quality of the legislator connections, not the quantity. In fact, even a small number of phone calls can create a huge impact of they are targeted to people who maintain close relationships with politicians. As such, lobbyists must build these relationships and eventually put them to good use when the need arises.

Knights of Columbus Breaks Charitable Records 17th Year in a Row

Knights of Columbus
Image: kofc.org

Martin Milita has served as a senior director at Duane Morris Government Strategies in Trenton, New Jersey, since 2012. A committed philanthropist, Martin Milita supports the charitable faith-based organization Knights of Columbus.

A fraternal benefit society dedicated to helping people who are poor, ill, or disabled, Knights of Columbus maintains more than 1.9 million members worldwide. In a recent press release, the society announced its success in attaining record-breaking charitable efforts for the 17th consecutive year. As with previous years, 2015 witnessed steady gains in both donations and service hours. Last year’s totals reached $175,079,192 in contributions and 73.4 million service hours—up $1.5 million and more than a million hours in 2014. As expounded in the Knights’ Annual Survey of Fraternal Activity, 2015’s most magnanimous jurisdictions included Texas, California, Illinois, Michigan, and Ontario.

For the 2016-2017 fraternal year, Knights hopes to continue to expand its number of financial gifts and volunteer hours.

Knights of Columbus Recognized as a World’s Most Ethical Company

Knights of Columbus
Image: kofc.org

Since 2012, Martin Milita has served as senior director at Duane Morris Government Strategies (DMGS) in New Jersey, where he provides public affairs and government relations services. Martin Milita complements his professional endeavors with support for various nonprofit groups and charities, including the fraternal service organization Knights of Columbus.

In a recent press release, the Knight of Columbus announced that it was recognized as a 2016 World’s Most Ethical Company by the Ethisphere Institute, one of the top groups in the world dedicated to advancing ethical business practices. Ethisphere has named the Knights of Columbus as one the world’s most ethical companies for three consecutive years, and it is one of just two life insurance companies included on the list. According to the CEO of Knights of Columbus, the company applies Catholic values and ethical standards across all of its business activities, from investments to daily operations.

Ethisphere has been identifying ethical companies for a decade based on their ability to foster corporate trust, align ethical standards with action, and model innovative best practices. By upholding ethical standards, Ethisphere explains that companies generate more value for stakeholders and establish a sustainable business advantage.

Martin Milita – Medicaid Fraud Control Units

Medicaid Fraud Control Units
Image: oig.hhs.gov

With experience in legislative and regulatory lobbying, business development, and law, Martin Milita serves as senior director at Duane Morris Government Strategies, LLC. In this position, Martin Milita has investigated matters related to fracking, environmental permits, and Medicaid fraud throughout the state.

Jointly funded by the U.S. Department of Health and Human Services’ Office of Inspector General and by their home states, Medicaid Fraud Control Units prosecute people who violate the Medicaid system. They investigate claims of patient abuse and neglect in healthcare facilities, violations of the Civil False Claims Act that impact Medicaid, and fraud against any part of the Medicaid system. First established in 1977, these organizations consist of lawyers, investigators, and legislators who understand the Medicaid system. Currently, 49 states and the District of Columbia all have their own Medicaid Fraud Control Unit.

Pharmaceutical manufacturers remain a key area of focus for Medicaid Fraud Control Units. Over 60% of the civil settlements and judgments they obtained throughout FY 2013 came from investigations of actions committed by these companies. The same year saw the largest criminal recovery in the program’s history following an investigation into a pharmaceutical manufacturer. Among the conglomerate’s illicit actions were illegal marketing, false statements about safety, and illegal payments made to healthcare practitioners.

Congress has busy schedule before Memorial Day recess

Congress has a busy schedule before each chamber takes a one-week break for Memorial Day recess.

The Senate returns to work on Monday and will vote on legislation to reauthorize the Adam Walsh Act, legislation initially enacted in 2006 to address child sex offenses. The major work of the week on the Senate floor will commence on Tuesday when consideration begins on the annual defense authorization bill. The Senate will aim to complete the bill before departing for the week. Debate on the bill is likely to be less contentious than the House’s consideration of its companion bill. As in the House, the most significant issue will be an effort by Armed Services Committee Chairman John McCain, R-Ariz., to increase the funding level for the military provided in the bill. The House increased the level of authorized funding by raiding the pool of funds designated for support of overseas operations. If adopted, the House approach would lead to a shortfall in operational funds next year, requiring supplemental appropriations from Congress. The Senate does not plan to raid that account. Instead, Chairman McCain is reported to be planning simply to seek to add new funds to the bill. Democrats have contested Republican efforts to add defense funds without adding like amounts to the domestic programs they tend to support. Some Republican deficit hawks likewise oppose additional defense spending. The fact that Chairman McCain did not seek to add his amendment during the committee’s markup of the bill suggests he did not have the votes in his own committee, and he is similarly unlikely to garner sufficient support on the floor for his effort. The Senate bill would also extend the requirement that 18-year-olds register for the draft to women.

Although the defense bill is likely to consume the balance of the week, it is possible the Senate will interrupt its consideration of the bill and move to the compromise chemical-regulation bill, the reform of the Toxic Substances Control Act, prior to the end of the week. Reform of the TSCA has been a lengthy process, and after years of deliberation, a bipartisan and bicameral consensus evolved around a compromise effort. The House will take up the bill this week, and once it does, the Senate could enter into a time agreement allowing for the bill’s consideration there as well. Enactment of the TSCA bill will be another in a series of significant accomplishments for the current Congress, a further indication that the Senate is again fulfilling its legislative role after several years in which it was failing as an institution (although Democrats point to the lack of progress on confirmations to argue that the Senate is still not performing its full set of constitutional responsibilities).

The House too returns to work on Monday with an unusually full schedule of 30 bills to be considered under suspension of the rules. Although on the surface this schedule appears very heavy, a large number of the bills simply name federal facilities, primarily post offices and Department of Veterans Affairs facilities. Among the substantive bills, the House will tackle the annual intelligence authorization bill, as well as bills from the Energy and Commerce Committee and two bills to improve the process by which the federal government disposes of excess property.

After the heavy suspension schedule, the House will turn on Tuesday to a bill to address the Zika virus under a rule. Last week, both chambers passed proposals to provide funding to address the Zika virus, but the Senate did so in the form of an amendment to an appropriations bill; the House did so as a freestanding bill. The Senate will need to take up the House-passed bill, amend it to include the Senate proposal, and request a conference before further progress can be made. In the meantime, the House will take up H.R. 897, the Zika Vector Control Act, introduced by Rep. Bob Gibbs, R-Ohio).

After the Zika bill, the House turns to the TSCA reform bill noted above. Following the TSCA legislation, the House plans to take up a bill to clarify the authority of Congress over the District of Columbia. Congress has authority under the Constitution to control the seat of the national government, but it ceded much of that authority when it approved home rule legislation for D.C. in the early 1970s. Recently, D.C. voters approved a charter amendment that purports to allow D.C. to expend its own locally raised funds without congressional approval. A judge of the D.C. Superior Court upheld the proposal, but House Republicans believe the charter amendment is invalid and beyond the ability of D.C. voters to adopt. Last week, the Oversight and Government Reform Committee, which oversees D.C. for Congress, reported H.R. 5233 on a party-line vote. The bill would clarify that D.C. must still obtain congressional approval before it may expend funds, even if the funds derive entirely from locally raised revenue. The bill is unlikely to get considered in the Senate, even after it passes the House, as it will.

The House then finishes the week with two energy-related bills. It will take up its version of the Energy and Water Appropriations bill. The Senate passed its version two weeks ago, and the House will aim to complete action on the bill before breaking for Memorial Day. The Energy and Water bill is one of the more popular of appropriations bills, due to the funding contained in it for local projects across the country. In addition to the appropriations bill, the House will also take up its version of the energy bill. The Senate passed a bipartisan energy bill last year. The House will take up the Senate-passed bill but will substitute its own energy-bill text in place of the Senate-approved language. Once it completes consideration of the energy bill, the House plans to move to go to conference with the Senate on the energy legislation, and will likely consider in that context a Democratic motion to instruct conferees. If a conference committee can reach agreement on an energy bill that could pass both chambers, it would be yet another major accomplishment for this Congress, and the Senate, which, despite much maligning in the media has been very productive on a variety of legislative initiatives that have been stalled for many years.

In addition to the floor, the committee schedule is also very busy this week. Among the highest profile items is likely to be the House Natural Resources Committee’s markup on Wednesday of the revised bill to assist Puerto Rico tackle its debt situation. After several weeks of intensive negotiations following the introduction of the first version of the bill, last Thursday evening the House introduced a new version of the bill. The negotiations were led by the speaker’s office and the committee’s chairman, Rob Bishop, R-Utah. The revised bill has garnered cautious support from members on both sides of the aisle. Although there are provisions members of each party dislike, the urgency of the need to help Puerto Rico address its insolvency appears to have brought enough members together to allow the bill to move forward. The first step in the process will be a markup in committee on Wednesday. The full House is likely to turn to the bill when it returns following Memorial Day, and Senate action thereafter prior to the impending July 1 date when Puerto Rico faces a massive debt payment it cannot make, is likely. If Congress succeeds in enacting the bill, it will be a major victory for Speaker Ryan, who staked much on getting a bill done.

Other markups next week will see the Senate Judiciary Committee take up the E-mail Privacy Act on Thursday. The House passed its version of the bill unanimously, but what will happen in the Senate committee is uncertain. The Appropriations Committees in each chamber will be busy this week marking up additional bills for floor consideration. In the Senate, both the relevant subcommittees and the full committee plan to mark up the Defense and Homeland Security bills this week (Tuesday in the subcommittees and Thursday in full committee). On the House side, the full committee plans to mark up the Commerce, Justice, Science and Transportation-Housing and Urban Development bills on Tuesday, and on Wednesday the relevant subcommittees will mark up the Financial Services and Interior bills. Finally, the Senate Homeland Security and Governmental Affairs Committee will mark up pending legislation.

On Tuesday, the House Ways and Means Committee will hold a hearing on welfare reform. Also on Tuesday, the House Judiciary Committee will hold the first hearing it is promising to consider the impeachment of the IRS Commissioner, John Koskinen. Although Speaker Ryan has signaled his opposition to impeachment and senators have dismissed it, House conservatives, led by Freedom Caucus chairman Jim Jordan, R-Ohio, have been pushing for Commissioner Koskinen’s impeachment in the wake of the scandal over allegations of political targeting of conservative nonprofit groups by the IRS. At the initial hearing, the Judiciary Committee expects to hear from members of the Oversight Committee who, along with the Ways and Means Committee, have led the inquiry into political manipulation by the IRS. Other hearings of note this week include a Tuesday Senate Foreign Relations Committee hearing on the U.S.-India relationship; hearings by the Senate Baking and House Foreign Affairs Committees on aspects of the Iran nuclear deal; and a two-day hearing on Wednesday and Thursday by the House Homeland Security Committee into the dramatic airport-screening delays being experienced across the country.

 

What Is the Process of an Internal Investigation?

Duane Morris Government Strategies, LLC
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Attorney Martin Milita serves as senior director at Duane Morris Government Strategies, LLC, in Trenton, New Jersey. A member of the Business Law Section of the American Bar Association, Martin Milita draws on his skills and experience in business law to walk companies through the process of conducting an internal investigation.

A number of events can trigger an internal investigation within a company, including an allegation or suggestion of wrongdoing or misconduct. The allegation or suggestion may come from an outside source, such as a regulatory agency, or an internal party, such as an employee or shareholder.

Once a company deems an internal investigation necessary, the company should first locate and review any documents related to the inquiry. Then, it should conduct interviews with anyone who may be involved or have knowledge relevant to the investigation. Finally, the company should compile all findings and report to company leaders and to those responsible for triggering the investigation.

The process of an internal investigation can be complicated and time consuming, but companies can save time and stress by employing the services of an attorney experienced in business law.