ASSEMBLY CONCURRENT RESOLUTION No. 37
STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Assemblyman PETER J. BARNES, III
District 18 (Middlesex)
Assemblyman JOHN F. MCKEON
District 27 (Essex and Morris)
Assemblyman REED GUSCIORA
District 15 (Hunterdon and Mercer)
Assemblywoman L. GRACE SPENCER
District 29 (Essex)
Assemblyman THOMAS P. GIBLIN
District 34 (Essex and Passaic)
Assemblymen Chivukula, Caputo and Assemblywoman Jasey
Determines that adopted DEP rules and regulations establishing procedure for waiver of DEP rules are inconsistent with legislative intent.
CURRENT VERSION OF TEXT
As reported by the Assembly Environment and Solid Waste Committee on May 21, 2012, with amendments.
A Concurrent Resolution concerning legislative review of Department of Environmental Protection regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.
Whereas, Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement and, upon a finding that the rule or regulation is not consistent with legislative intent, may transmit the finding to the Governor and the head of the agency; and
Whereas, On March 7, 2011, the Department of Environmental Protection proposed for public comment in the New Jersey Register new rules, proposed to be codified at N.J.A.C.7:1B, to establish a procedure for the waiver of department rules; and
Whereas, The summary of the rule proposal focuses on a discussion of Executive Order No. 2 of 2010 issued by Governor Christie as the reasoning for the proposed new rules and does not provide any support or justification for the proposed rulemaking based on any statutory authority granted to the Department of Environmental Protection; and
Whereas, The notice of proposal lists over 100 statutory citations as the authority for the rule proposal; however, none of these statutes are discussed in the summary of the rule proposal, none of the statutory references provide the Department of Environmental Protection with the authority to promulgate one set of rules and regulations in order to waive other rules and regulations previously adopted pursuant to the “Administrative Procedure Act,” and none of the statutes referenced authorize the department to establish a procedure for the waiver of other department rules; and
Whereas, Of the over 100 statutory citations listed as the authority for the rule proposal, some are incorrect and do not provide the Department of Environmental Protection with any statutory authority for rulemaking, for example: N.J.S.A.39:3-33.1 concerns the registration of motor vehicles by veterans; N.J.S.A.40:55D-1 et seq. is the “Municipal Land Use Law”; N.J.S.A.40A:11-1 et seq. is the “Local Public Contracts Law”; N.J.S.A.45:1-9 requires contractors licensed by the State to indicate their license or certificate number on all contracts, subcontracts, bids and all forms of advertising as a contractor; N.J.S.A.48:3-1 et seq. pertains to the authority of the Board of Public Utilities regarding the rates imposed by public utilities; N.J.S.A.50:1-1 et seq. and N.J.S.A.58:4A-4 are repealed; and N.J.S.A.58:1B-1 et seq. and 58:1B-7 deal specifically with the authority of the New Jersey Water Supply Authority 1; and the notice of adoption published in the New Jersey Register on April 2, 2012 retains these citations as the authority for the new rules with the exception of deleting the two citations to the repealed sections of law and replacing the reference to N.J.S.A.39:3-33.1 with N.J.S.A.39:3-33.10 to 33.11 concerning Conserve Wildlife license plates1 ; and
Whereas, 1[According to the rule proposal, the] The1 new rules 1[would “establish the conditions and procedures for] establish a procedure whereby1 the department 1[to] may1 approve 1[waivers] a request for a waiver1 from strict compliance with its rules 1[where appropriate to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists”] when the department determines that at least one of the following conditions exists: there are “conflicting rules”; strict compliance with the rule would be “unduly burdensome”; a “net environmental benefit” would be realized; or a public emergency has been declared1 ; and
Whereas, P.L.2011, c.34 (N.J.S.A.52:14B-26 et seq.) as originally introduced in the Legislature as Senate Bill No. 6 and Assembly Bill No. 2853 included a section that would have authorized State and local agencies responsible for issuing permits or approvals to waive strict compliance with the standards promulgated for issuing those permits or approvals, where necessary to alleviate undue hardship and where the waiver is based on common sense principles, and this section was deleted from the bill as it moved through the legislative process and is not in the final bill as enacted into law; and
Whereas, If the Legislature had intended for a State agency to proceed with a rulemaking such as the one put forth by the Department of Environmental Protection establishing an omnibus procedure for the waiver of existing rules and regulations, the Legislature could have authorized such a procedure when it was acting on Senate Bill No. 6 and Assembly Bill No. 2853 instead of deleting the waiver provision in that legislation in its entirety; and
Whereas, Based upon the statutory citations listed as the authority for the rule proposal 1and the notice of adoption published in the New Jersey Register on April 2, 20121 , the Department of Environmental Protection is going far beyond establishing a procedure to waive compliance with its existing rules and regulations for permits and approvals related to economic development projects as the statutory authority citations include a number of statutes related to natural areas, parks and historic resources, such as the “Natural Areas System Act” (N.J.S.A.13:1B-15.12a et seq.), the law establishing the Historic Sites Council (N.J.S.A.13:1B-15.108 et seq.), the law establishing the New Jersey Register of Historic Places (N.J.S.A.13:1B-15.128 et seq.), the State Fish and Game Code (N.J.S.A.13:1B-30 et seq.), the “State Park and Forestry Resources Act” (N.J.S.A.13:1L-1 et seq.); the “New Jersey Trails System Act” (N.J.S.A.13:8-30 et seq.), the “New Jersey Green Acres Land Acquisition Act of 1961” (N.J.S.A.13:8A-1 et seq.), the “New Jersey Green Acres Land Acquisition Act of 1971” (N.J.S.A.13:8A-19 et seq.), the “New Jersey Green Acres Land Acquisition and Recreation Opportunities Act” (N.J.S.A.13:8A-35 et seq.), the “Garden State Preservation Trust Act” (N.J.S.A.13:8C-1 et seq.), and the “Farmland Assessment Act of 1964” (N.J.S.A.54:4-23.1 et seq.); and
Whereas, While the “Highlands Water Protection and Planning Act” (N.J.S.A.13:20-1 et al.) provides specific authority for the Highlands permitting review program established by the Department of Environmental Protection pursuant to the act to allow for a waiver of the provisions of a Highlands permitting review on a case-by-case basis for three specific circumstances, the 1[current rule proposal does] provisions of these new rules set forth at N.J.A.C.7:1B-1.1 et seq. do1 not conform with the language set forth in section 35 of that act (N.J.S.A.13:20-33) by establishing new waiver criteria not authorized in the law; and
Whereas, The rule proposal 1and the notice of adoption published in the New Jersey Register on April 2, 20121 also 1[cites] cite1 the “Site Remediation Reform Act” (N.J.S.A.58:10C-1 et seq.) as providing authority for this rule; however, this law, enacted in 2009, is quite specific in the authority granted to the Department of Environmental Protection, and while it provides the department with numerous responsibilities and discretion in a number of areas, it only authorizes a deviation “from the strict adherence to the regulations” in one specific instance found at N.J.S.A.58:10B-2, and the language in the 1[proposed]1 new rules is contrary to this provision; and
Whereas, A number of the statutory citations identified in the proposal 1and the notice of adoption published in the New Jersey Register on April 2, 20121 , such as N.J.S.A.58:10B-4 (the Hazardous Discharge Site Remediation Fund), N.J.S.A.58:10B-20 (the Remediation Guarantee Fund), N.J.S.A.58:12A-22 through N.J.S.A.58:12A-25 (the “Water Supply Replacement Trust Fund”), are to laws establishing specific funds for enumerated purposes or to appropriations of funds for certain specified purposes and there is no law that authorizes a State agency to waive requirements for complying with designated uses of State funds; and
Whereas, At 1[proposed new]1 N.J.A.C.7:1B-2.1(b), the 1[proposal] new rule1 states that the department will not waive any rule in 1 131 specific enumerated areas; however, a number of statutes listed as the authority for the rule 1[proposal]1 clearly fall within those 11 specific areas, leading to confusion and a lack of clarity as to how this rule 1[proposal would] will1 be implemented and to what it exactly applies; and
Whereas, For all of the above reasons, the 1[proposed] adopted1 rules and regulations 1[to establish] establishing1 a procedure for the waiver of department rules are inconsistent with the statutory authority provided to the Department of Environmental Protection and 1[would]1 undermine the specific rules and regulations adopted pursuant to the authority granted to the department by the Legislature in specific laws; now, therefore,
Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):
1. The Legislature declares that the rules and regulations proposed in the New Jersey Register on March 7, 2011 by the Department of Environmental Protection 1[to establish] , adopted by the Commissioner of Environmental Protection on March 6, 2012, and published in the New Jersey Register on April 2, 2012 establishing1 a procedure for the waiver of department rules are not consistent with the intent of the Legislature.
2. The Clerk of the General Assembly and the Secretary of the Senate shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Environmental Protection.
3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Environmental Protection shall have 30 days following transmittal of this resolution to amend or withdraw the 1[proposed] adopted1 rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.