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2 of 223 DOCUMENTS

NEW JERSEY REGISTER

Copyright © 2007 by the New Jersey Office of Administrative Law

VOLUME 39, ISSUE 24

ISSUE DATE: DECEMBER 17, 2007

RULE PROPOSALS

HEALTH AND SENIOR SERVICES

PUBLIC HEALTH SERVICES
DIVISION OF EPIDEMIOLOGY, ENVIRONMENTAL AND OCCUPATIONAL HEALTH
CONSUMER AND ENVIRONMENTAL HEALTH SERVICES
LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF PUBLIC SAFETY AND OCCUPATIONAL SAFETY AND HEALTH

39 N.J.R. 5172(a)

Joint Proposed Amendments: N.J.A.C. 8:60-4.3, 5.5, 5.8 and 7.2 and 12:120-4.3, 5.5, 5.8 and 7.2

Click here to view Interested Persons Statement

Asbestos Licenses and Permits

Authorized By: David J. Socolow, Commissioner, Department of Labor and Workforce Development and Fred M. Ja-
cobs, M.D., J.D., Commissioner, Department of Health and Senior Services.

Authority: N.J.S.A. 34:5A-32 et seq., specifically, N.J.S.A. 34:5A-39 and Reorganization Plan No. 002-2002.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2007-366.

A public hearing on the proposed amendments will be held on the following date at the following location:
January 2, 2008
10:00 A.M. to 12:00 Noon
N.J. Department of Labor and Workforce Development
John Fitch Plaza
1st floor Conference Room
Trenton, New Jersey
Please call the Office of Legal and Regulatory Services at (609) 292-2789 if you wish to be included on the list of
speakers.
Submit written comments by February 15, 2008 to:
David Fish, Regulatory Officer
Office of Legal and Regulatory Services
N.J. Department of Labor and Workforce Development
P.O. Box 110 - 13th Floor
Trenton, New Jersey 08625-0110
Fax to: (609) 292-8246
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39 N.J.R. 5172(a)

If you need this document in Braille, large print or audio cassette, contact the Office of Marketing at (609) 292-
7832 or NJ Relay (TTY) 1-800-852-7899.

The agency proposal follows:

Summary
Pursuant to N.J.S.A. 34:5A-39 and Reorganization Plan No. 002-2002, the Commissioner of Labor and Workforce
Development and the Commissioner of Health and Senior Services are authorized to jointly adopt standards and regula-
tions, which they deem necessary for the proper administration and enforcement of the Asbestos Control and Licensing
Act (the Act), N.J.S.A. 34:5A-32 et seq. N.J.S.A. 34:5A-39 states that these standards and regulations shall include,
among other things, "fee charges." N.J.S.A. 34:5A-38 also states that the Commissioner of Labor and Workforce Devel-
opment shall, "in accordance with the fee schedules adopted by regulation, establish, charge and collect reasonable an-
nual fees for licenses and permits." The Act does not indicate any specific fee amounts to be charged. Rather, the Act
leaves to the discretion of the Departments of Labor and Workforce Development and Health and Senior Services (sub-
ject to the rulemaking requirements of the Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq.) the determination
as to the appropriate fee amounts to be charged.
The Departments are proposing to amend N.J.A.C. 8:60 and 12:120, so as to double the fees charged under the
chapters for (1) the filing of an application for an annual license to those entities which employ, permit or suffer another
to work or directly perform asbestos work (asbestos work employers), (2) the issuance of a duplicate license to asbestos
work employers, (3) the filing of applications for annual asbestos worker and asbestos work supervisor permits, and (4)
the issuance of duplicate asbestos worker and asbestos work supervisor permits. In addition, the Departments are pro-
posing new N.J.A.C. 8:60-7.2(b)9 and 12:120-7.2(b)9, which would require, for the first time, that each written notifica-
tion of intent to perform asbestos work must be accompanied by a $ 200.00 non-refundable fee (certified check or
money order made payable to the Commissioner of Labor and Workforce Development). The Department is also pro-
posing an amendment to N.J.A.C. 8:60-7.2 and 12:120-7.2, which would make clear that the same procedure must be
followed for an emergency notification of intent to perform asbestos work as is required under N.J.A.C. 8:60-7.2(a) and
(b) and 12:120-7.2(a) and (b) for a non-emergent notification of intent to perform asbestos work, with the exception that
under emergency circumstances, the employer may provide less than 10 days prior notification of intent to perform as-
bestos work.
Specifically, the Departments are proposing to amend N.J.A.C. 8:60-4.3(h) and 12:120-4.3(h) so as to increase the
fee from $ 1,000 to $ 2,000 for the filing of an application for an annual asbestos work employer license and so as to
increase the fee from $ 100.00 to $ 200.00 for the issuance of a duplicate asbestos work employer license.
The Departments are proposing to amend N.J.A.C. 8:60-5.5(e) and 12:120-5.5(e) so as to increase the fee from $
50.00 to $ 100.00 for the filing of an application for an annual asbestos worker permit.
The Departments are proposing to amend N.J.A.C. 8:60-5.5(f) and 12:120-5.5(f) so as to increase the fee from $
75.00 to $ 150.00 for the filing of an application for an annual asbestos work supervisor permit.
The Departments are proposing to amend N.J.A.C. 8:60-5.8(g) and 12:120-5.8(g) so as to increase the fee from $
5.00 to $ 10.00 for the issuance of a duplicate asbestos worker permit and so as to increase the fee from $ 7.50 to $
15.00 for the issuance of a duplicate asbestos work supervisor permit.
The Departments are proposing to amend N.J.A.C. 8:60-7.2 and 12:120-7.2 so as to require, for the first time, that
each written notification of intent to perform asbestos work must be accompanied by a $ 200.00 non-refundable fee
made payable to the Commissioner of Labor and Workforce Development. The Departments are also proposing that
N.J.A.C. 8:60-7.2 and 12:120-7.2 be amended so as to make clear that the same procedure must be followed for an
emergency notification of intent to perform asbestos work as is required under N.J.A.C. 8:60-7.2(a) and (b) and 12:120-
7.2(a) and (b) for a non-emergent notification of intent to perform asbestos work, with the exception that under emer-
gency circumstances, the employer may provide less than 10 days prior notification of intent to perform asbestos work.
In terms of justification for the proposed fee increases, the Act requires that the Department of Labor and Work-
force Development process all license and permit applications and that both the Department of Labor and Workforce
Development and the Department of Health and Senior Services enforce the Act, inspecting premises and records in
order to identify violations of the Act and penalizing violators. The cost to the Departments in order to meet these statu-
tory obligations in terms of staffing and other administrative expenses is significant and ever increasing. That is, as the
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39 N.J.R. 5172(a)

State's population grows annually and as the amount of construction within the State increases accordingly, there are
more license and permit applications, more work sites to inspect for possible violations and more enforcement actions to
undertake in order to protect the public from the possible unsafe application, enclosure, removal, encapsulation, storage,
sale, disposal and use of asbestos and asbestos-containing material. In order to fulfill its statutory obligations pertaining
to the review of license and permit applications and enforcement activities, including responding to citizen complaints
as required under N.J.S.A. 34:5A-44 and completing investigations of premises and records, the Department is propos-
ing the above mentioned fee increases and the new notification fee.
As the Department has provided a 60-day comment period for this notice of proposal, this notice is excepted from
the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact
The proposed amendments would have a positive social impact in that the increased revenue generated thereby
would, as discussed in the Summary above, enable the Departments to more effectively meet their license and permit
review and enforcement obligations under the law. The Department of Labor and Workforce Development's improved
license and permit review capability would, in turn, benefit asbestos work employer license applicants and applicants
for asbestos worker and asbestos work supervisor permits, in that they would receive quicker turnaround on their appli-
cations. Similarly, the Departments' improved enforcement capability would benefit the general public in that they
would be considerably more safe when working or living in or near areas where asbestos application, enclosure, re-
moval, encapsulation, storage, sale, disposal and use of asbestos and asbestos-containing material is occurring.

Economic Impact
The proposed amendments to N.J.A.C. 8:60-4.3, 5.5 and 5.8 and 12:120-4.3, 5.5 and 5.8 would approximately dou-
ble the revenue received by the Department of Labor and Workforce Development from fees associated with the review
of applications for licenses and permits. Conversely, the proposed amendments would double the amount of fees paid
by license and permit applicants. The proposed amendments to N.J.A.C. 8:60-7.2 and 12:120-7.2 would impose for the
first time a $ 200.00 fee for notification of intent to perform asbestos work, which is a cost that would be borne by as-
bestos work employers. The Departments believe that the negative economic impact on asbestos work employers, as-
bestos workers and asbestos work supervisors that would result from the proposed increase in fees and the imposition of
a new notification fee would, as indicated in the Social Impact statement above, be outweighed by the positive social
impact on the public, namely, the improvement in the safety of construction jobs involving the application, enclosure,
removal, encapsulation, storage, sale, disposal or use of asbestos and asbestos-containing material. Moreover, applicants
for licenses and permits would benefit from the increased fees in that turnaround times for completion of application
review should improve considerably as a result of the increase in staffing, which would be funded by those increased
fees. As indicated above, the Departments have certain statutory obligations with regard to the processing of applica-
tions for licenses and permits and enforcement of the Act, which, at current staffing levels, they are having great diffi-
culty meeting. The proposed increase in existing fees and the imposition of a new notification fee should enable the
Departments to more effectively address those statutory obligations. The proposed fee schedules are comparable to the
fees charged by jurisdictions throughout the United States where equivalent services and protections are afforded, such
as New York, Connecticut, Maryland, Pennsylvania and Delaware.

Federal Standards Statement

The proposed amendments are governed by N.J.S.A. 34:5A-32 et seq., the Asbestos Control and Licensing Act, and
are not subject to any Federal standards or requirements. Therefore, a Federal standards analysis is not required.

Jobs Impact
As indicated above, the Departments anticipate that the proposed amendments would permit the hiring of additional
staff for the review of license and permit applications and for enforcement activities. Otherwise, the Departments do not
anticipate that the proposed amendments would have an impact on either the generation or loss of jobs.

Agriculture Industry Impact

The Departments do not anticipate that the proposed amendments would have an impact on the agriculture industry.
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39 N.J.R. 5172(a)

Regulatory Flexibility Analysis

The proposed amendments would impose no reporting or recordkeeping requirements on small businesses, as that
term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. However, with regard to compliance re-
quirements and adverse economic impact on small businesses, as described above in the Summary and Economic Im-
pact statements, the proposed amendments would double the amount of fees paid by applicants for licenses and permits
and would impose a new fee for notification of intent to perform asbestos work. These fee increases and the new notifi-
cation fee would affect asbestos work employers, which could include small businesses. As also explained above in the
Economic Impact statement, the Departments believe that the negative economic impact on such employers, which
would result from the increase in fees and the new fee, would be outweighed by the improvement in the safety of con-
struction sites (and surrounding areas) throughout the State. The Departments do not anticipate that professional ser-
vices will be needed in order to comply with the proposed amendments.
With regard to how the amendments are designed to minimize adverse impact on small businesses, the Departments
have determined that the proposed fee increases and new fee are the minimum necessary in order to more effectively
staff the Departments and thereby protect the lives and safety of those who perform work in the application, enclosure,
removal, encapsulation, storage, sale, disposal and use of asbestos and asbestos-containing material and those who live
or work in close proximity to the performance of such activities.

Smart Growth Impact

The proposed amendments would not have an impact on the achievement of smart growth and the implementation
of the State Development and Redevelopment Plan.

Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

12:120-4.3 (8:60-4.3) Application for license

(a)-(g) (No change.)

(h) The application fee for an annual license shall be $ [1,000]2,000. The fee for the issuance of a duplicate license shall
be $ [100.00]200.00. The Commissioner may, by amendment to this section, reduce these fees based on a decrease in
program costs.

(i)-(m) (No change.)

12:120-5.5 (8:60-5.5) Procedures for completing permit application

(a)-(d) (No change.)

(e) The applicant for a worker permit shall submit a $[50.00]100.00 non-refundable fee (certified check or money order
made payable to the Commissioner of Labor and Workforce Development) with the permit application. The Commis-
sioner may, by amendment to this section, reduce this fee based on a decrease in program costs.

(f) The applicant for a supervisor permit shall submit a $ [75.00]150.00 non-refundable fee (certified check or money
order made payable to the Commissioner of Labor and Workforce Development) with the permit application. The
Commissioner may, by amendment to this section, reduce this fee based on a decrease in program costs.

(g) (No change.)

12:120-5.8 (8:60-5.8) Identification of permit holder

(a)-(f) (No change.)

(g) The cost for a replacement or duplicate permit shall be $ [5.00]10.00 for a worker permit and $ [7.50]15.00 for a
supervisor permit.
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39 N.J.R. 5172(a)

12:120-7.2 (8:60-7.2) Notification requirements

(a) (No change.)

(b) The written notification required by (a) above shall include:

1.-7. (No change.)

8. The name, address and New Jersey Waste Hauler identification number of the registered waste hauler; [and]

9. A $ 200.00 non-refundable fee (certified check or money order made payable to the Commissioner of Labor
and Workforce Development); and

[9.]10. (No change in text.)

(c) (No change.)

(d) The Commissioner of Labor and Workforce Development or the Commissioner of Health and Senior Services, as
the case may be, may allow less than 10 calendar days prior notification where emergency circumstances warrant less
than a 10 calendar day prior notification.

1. Where emergency circumstances warrant less than a 10 calendar day prior notification, an employer shall still
be required to adhere to the remaining requirements of N.J.A.C. 12:120-7.2(a) and (b) and 8:60-7.2(a) and (b)
when it plans to perform asbestos work in New Jersey.

Recodify existing 1. and 2. as 2. and 3. (No change in text.)

(e) (No change.)