The disclosure statement reaches people who are not on the payroll
The vetting machinery the 2019 act borrowed is the disclosure statement at C.13:1E-128, written for the solid and hazardous waste industry and now applied to soil and fill. Every applicant and permittee files a disclosure statement with the Attorney General, and “any person required to be listed in the disclosure statement shall be fingerprinted for identification and investigation purposes” under procedures the Attorney General establishes. The Attorney General then prepares and transmits an investigative report to the department, based in part on the statement, and may request and receive criminal history information.
What makes this heavier than an ordinary licensing form is the definition of “key employee.” The act defines it as any individual employed or otherwise engaged by the applicant, permittee or licensee “in a supervisory capacity or empowered to make discretionary decisions with respect to the solid waste, hazardous waste, or soil and fill recycling operations of the business concern”; then extends it to “any family member of an officer, director, partner, or key employee, employed or otherwise engaged by the applicant or permittee”; and then extends it again to “any broker, consultant or sales person employed or otherwise engaged by, or who do business with, the applicant, permittee, or licensee” with respect to those operations.
The phrase “who do business with” is doing real work there. A broker who never appears on a payroll can be a key employee for disclosure purposes. And “family member” is separately defined at length — spouse, domestic partner, partner in a civil union, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, and the in-law, step and half relations, “whether the individual is related by blood, marriage, or adoption.” A closely held hauling company staffed by relatives has more people inside the disclosure perimeter than it has on the organization chart.
The statement itself asks for history as well as identity. It requires a description of experience and credentials, including past or present licenses, in the collection, transportation, treatment, storage, brokering, transfer or disposal of solid waste or hazardous waste or the provision of soil and fill recycling services, held by the applicant and by its key employees, officers, directors or partners. It requires a listing and explanation of any notices of violation, prosecutions, administrative orders or license revocations issued by New Jersey or any other state or federal authority in the ten years immediately preceding the filing, that are pending or that resulted in a finding or settlement. And it requires a listing and explanation of judgments of liability or convictions rendered against the applicant or against any key employee, officer, director or partner.
Enforcement is layered rather than sequential. On finding a violation, the department may issue a compliance order, bring a civil action, levy a civil administrative penalty, bring an action for a civil penalty, or petition the Attorney General to bring a criminal action — and “Administrative and judicial remedies provided in this section may be pursued simultaneously.” Engaging in soil and fill recycling services without a registration or license, or knowingly making a false or misleading statement to the department or the Attorney General in connection with one, is a crime of the third degree carrying a fine of not more than $50,000.00 for a first offense and not more than $100,000.00 for a second and each subsequent offense, plus restitution.
The civil administrative penalty carries its own internal condition and the condition must travel with the figure: the department may assess “not more than $50,000.00 for each violation provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense,” but “shall not assess a civil administrative penalty in excess of $25,000.00 for a single violation, or in excess of $2,500.00 for each day during which a violation continues, until the department has adopted, pursuant to the ‘Administrative Procedure Act,’ P.L.1968, c.410 (C.52:14B-1 et seq.), rules” requiring it to consider operational history, severity, mitigation and deterrence. The higher ceiling depends on that rulemaking, which was not confirmed for this page.