S3415

An Act concerning the presence of lead in drinking water and supplementing Title 58 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Child care services” means services provided in a residential or non-residential setting and involving the care and supervision of six or more children under 13 years of age who are present at the facility or home-based setting for less than 24 hours a day. The term "child care services" includes, but is not limited to, the services provided by a day care center; a drop-in center; a night-time center; a recreation-type center sponsored and operated by a county or municipal government recreation or park department or agency; a nursery or play school; a cooperative child center; a center for children with special needs; a center serving sick children; an infant-toddler program; a school-age child care program; an employment-related center; a center that was licensed and authorized, by the Department of Human Services, to provide child care services prior to the enactment of the "Child Care Center Licensing Act," P.L.1983, c.492 (C.30:5B-1 et seq.); or a kindergarten or pre-kindergarten that is not an integral part of a private educational institution or system offering elementary education in kindergarten through sixth grade.

"Commissioner" means the Commissioner of Environmental Protection.

"Department" means the Department of Environmental Protection.

“Landlord” means any person who rents or leases, for a term of at least one month, commercial space or residential dwelling units for the purpose of providing child care services.

“Lead service line” means the same as the term is defined in section 2 of P.L.2021, c.183 (C.58:12A-41).

“NSF/ANSI standard” means a water treatment standard developed by the National Sanitation Foundation, International, and the American National Standards Institute.

“Public community water system” means the same as the term is defined in section 2 of P.L.2021, c.183 (C.58:12A-41).

2. a. A landlord of a residential or nonresidential building who rents space in the building to a child care services provider, and who denies a public community water system access to the property-owner side of a lead service line for the purposes of enabling the complete replacement of the lead service line, pursuant to P.L.2021, c.183 (C.58:12A-40 et seq.), shall install and maintain point-of-use water filters, which are certified by an accredited third-party certification body to meet NSF/ANSI standards 42 and 53, at all fixtures in the building that are used or intended to supply water to the space rented by the child care services provider for the purposes of drinking, food preparation, or the preparation of baby formula. For the full period of time in which the lead service line remains in operation, and for six months after the date that the lead service line is fully replaced, replacement cartridges for the filters shall be installed by the landlord at the frequency recommended by the manufacturer.

b. A landlord covered under the provisions of subsection a. of this section shall annually certify, to the Department of Environmental Protection, that the landlord has installed the filters or replacement cartridges, as required pursuant to subsection a. of this section.

c. The provisions of this section shall not apply if the lead service line at issue has been physically disconnected from the water main.

3. a. The commissioner is authorized to impose a civil administrative penalty of not more than $500 for each violation of section 2 of this act, and each day during which the violation continues shall constitute an additional, separate and distinct offense. In assessing a civil administrative penalty, the commissioner shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will maintain an appropriate deterrent.

b. Prior to the assessment of a civil administrative penalty, pursuant to subsection a. of this section, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing, and upon finding that a violation has occurred, the commissioner may issue a final order assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 35-day period.

c. A civil administrative penalty assessed pursuant to this section shall be due and paid within 30 days after a final order is issued or the notice becomes a final order. The authority to levy an administrative order shall be in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied.

d. The department may compromise any civil administrative penalty assessed under this section, in an amount and with conditions the department determines appropriate.

4. a. Any tenant of a residential or nonresidential building whose landlord is subject to the requirements of section 2 of this act may notify the landlord of a violation of section 2 of this act, in writing, and the landlord shall, within 30 days after the receipt of such notice, install the required filters or replacement cartridges, as applicable. If the landlord fails to take the corrective action necessary for compliance within the 30 day period specified by this subsection, the tenant may bring an action, in a court of competent jurisdiction, seeking to pay rent into a court-administered escrow account. Following a hearing on the matter at which the court determines that the requisite filters or replacement cartridges have not been installed, the court shall authorize rent escrow payments to continue until the landlord has installed the required filters or replacement cartridges, as applicable. The court may additionally:

(1) order that some or all money in the escrow account be paid to the landlord or the landlord’s agent, the tenant or the tenant’s agent, or any other appropriate person or agency for the purpose of installing the required filters or replacement cartridges, as applicable;

(2) appoint a special administrator to ensure that the required filters or replacement cartridges, as applicable, are installed promptly and properly. Any special administrator appointed pursuant to this paragraph shall be entitled to apply to the court to use moneys in the escrow fund to pay the costs associated with the effectuation of the administrator’s duties;

(3) order that some or all money in the escrow account be disbursed to pay any mortgage or deed of trust on the property in order to stay foreclosure of the property;

(4) order that the money in the escrow account be disbursed to the landlord if the tenant does not regularly pay the rent owed into that account; or

(5) order the money in the escrow account to be forfeited by the landowner and disbursed to the tenant if the required filters or replacement cartridges, as applicable, have not been installed and no good faith effort to install them has been made in response to the initial decision to place money in the escrow account. Such an order shall not discharge the right of the tenant to pay rent into the court-administered escrow account and shall authorize the landlord to stay the forfeiture of the rent moneys in the escrow account upon filing an appeal of the order of forfeiture.

b. If, 30 days after rent escrow is authorized pursuant to subsection a. of this section, the required filters or replacement cartridges, as applicable, are not been installed, and no good faith effort to install them has been made, by the landlord, the tenant may file a civil action seeking damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jurisdiction. If the landlord's violation of the provisions of section 2 of this act causes a tenant or secondary user of the property, such as a child or a child care employee, to have elevated blood lead levels, then there shall be no limit or ceiling to the civil liability of the landlord.

c. A tenant shall not be eligible to file an action for rent escrow, pursuant to this section, if the tenant has been subject to three prior court judgments of possession for rent due and unpaid within the 12–month period immediately preceding the date of filing. If a court finds, at a rent escrow hearing conducted pursuant to this section, that the tenant who filed the action was ineligible for rent escrow at the time of filing, as provided by this subsection, the court shall deny the tenant’s petition.

d. Pursuant to sections 1 and 3 of P.L.1970, c.210 (C.2A:42-10.10, and C.2A:42-10.12), a landlord shall not take retaliatory action against a tenant, including eviction or termination of an existing property lease, in response to a tenant’s lawsuit over an unsafe living condition brought about by the landlord’s failure to remove a lead service line.

5. This act shall take effect on the first day of the third month next following the date of enactment.

STATEMENT

This bill would require a landlord of a residential or nonresidential building, in which space is rented by a child care services provider, to install and maintain certain water filters in the building if the landlord has previously denied a public community water system access to the property-owner side of a lead service line for the purposes of enabling the complete replacement of the lead service line. Specifically the bill would require the landlord to install and maintain point-of-use filters certified by an accredited third-party certification body to meet NSF/ANSI standards 42 and 53 at all fixtures that are used, or are intended for use, by the child care services provider, to supply water for the purposes of drinking, food preparation, or making baby formula. As defined by the bill, “NSF/ANSI standard” means a water treatment standard developed by the National Sanitation Foundation, International, and the American National Standards Institute. The landlord would also be required to annually certify, to the Department of Environmental Protection (DEP), that the landlord has installed and is properly maintaining and replacing the filters.

The bill would authorize the DEP to issue a civil administrative penalty of up to $500 per day for landlords who fail to install or maintain the filters or who fail to properly certify this fact to the DEP. The bill would also authorize a tenant of a landlord who violates the bill's provisions to file an action of rent escrow to pay rent into a court-administered escrow account until the necessary filters are installed. The bill would authorize the court to order that some or all of the money in the escrow account be paid to the landlord or the landlord’s agent, to the tenant or the tenant’s agent, or to any other appropriate person or agency for the purpose of installing the required filters or replacement cartridges, as applicable. If the landlord still fails to install the required filters or replacement cartridges following the authorization of rent escrow, the bill would authorize the tenant to file a civil action seeking damages and other appropriate relief, including injunctive and other equitable remedies. The bill would stipulate that, if the landlord's violation causes a tenant or secondary user of the property, such as a child or a child care employee, to have elevated blood lead levels, then there would be no limit or ceiling to the civil liability of the landlord.