ASSEMBLY, No. 5033

STATE OF NEW JERSEY

218th LEGISLATURE

 

INTRODUCED FEBRUARY 14, 2019

 


 

Sponsored by:

Assemblywoman  NANCY J. PINKIN

District 18 (Middlesex)

Assemblyman  RAJ MUKHERJI

District 33 (Hudson)

Assemblyman  HERB CONAWAY, JR.

District 7 (Burlington)

 

Co-Sponsored by:

Assemblyman Karabinchak

 

 

 

 

SYNOPSIS

     Authorizes DEP rulemaking to prevent backsliding of certain State environmental regulations due to changes in federal law or regulation.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning certain environmental regulations and amending various parts of the statutory law.

 

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

 

     1.    Section 5 of P.L.1973, c.309 (C.23:2A-5) is amended to read as follows:

     5.    a.  The commissioner shall have the power to formulate and promulgate, adopt, amend , and repeal rules and regulations, limiting, controlling , and prohibiting the taking, possession, transportation, importation, exportation, sale or offer for sale, or shipment of any nongame species or any wildlife on the State list of endangered species, and for the purposes of implementing section 6 of P.L.2016, c.6 (C.23:2A-6.1).  Such rules and regulations shall be designed to promote the public health, safety , and welfare and shall be adopted in accordance with the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.).

     b.    The commissioner is authorized to conduct periodic inspections in order to determine compliance with the rules and regulations adopted pursuant to this section, and, to that end, is authorized to charge and collect fees in an amount sufficient to cover the costs of the inspections and services performed pursuant to P.L.1973, c.309 (C.23:2A-1 et seq.).  Such fees shall be devoted entirely and exclusively to carrying out the purposes and provisions of P.L.1973, c.309 (C.23:2A-1 et seq.).  Inspection fees shall be established in accordance with a fee schedule adopted by the department as a rule and regulation pursuant to the provisions of the “Administrative Procedure Act.”

     c.     In the event of the federal delisting or a downgrade in the legally protected status of an endangered species which is listed, as of January 1, 2017, as endangered or threatened pursuant to the “Endangered Species Act of 1973,” Pub.L.93-205 (16 U.S.C. s. 1533), the commissioner shall, notwithstanding the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), immediately upon filing proper notice with the Office of Administrative Law, adopt rules and regulations as the commissioner deems necessary to ensure the protection of that endangered species pursuant to this act.  Such rules and regulations shall remain in effect for a period not to exceed 12 months, and shall, thereafter, be amended, adopted, or readopted by the commissioner in accordance with the requirements of the “Administrative Procedure Act.”

(cf.  P.L.2016, c.6, s.4)

     2.    Section 8 of P.L.1954, c.212 (C.26:2C-8) is amended to read as follows:

     8.    a.  The department shall have power to formulate and promulgate, amend , and repeal codes and rules and regulations preventing, controlling , and prohibiting air pollution throughout the State or in such territories of the State as shall be affected thereby, except as provided in subsection b. of this section; provided, however, that no such code, rule , or regulation and no such amendment or repeal shall be adopted except after public hearing to be held after 30 days' prior notice thereof by public advertisement of the date, time , and place of such hearing, at which opportunity to be heard by the department with respect thereto shall be given to the public; and provided, further, that no such code, rule , or regulation and no such amendment or repeal shall be or become effective until 60 days after the adoption thereof as  aforesaid.  Any person heard at such public hearing shall be given written notice of the determination of the department.

     All codes, rules and regulations heretofore adopted by the Air Pollution Control Commission shall continue in full force and effect subject to the power of the department to amend and repeal such codes, rules , and regulations as provided by [this act] P.L.1954, c.212 (C.26:2C-1 et seq.) .

     b.    Unless otherwise required by federal law, rule , or regulation, no code, regulation, rule , or standard may be adopted by the department that diminishes the efficacy of a hospital or medical disinfectant in killing or inactivating agents of infectious diseases, including, but not limited to, restrictions on the volatile organic compound content or emissions caused by the use of such products.  No federal requirement to reduce volatile organic compound content or emissions in general may be construed to permit the department to regulate the volatile organic compounds found in, or released in the use of, a hospital or medical disinfectant, unless the federal law, rule , or regulation establishing the federal requirement specifically requires the reduction of volatile organic compounds found in, or released in the use of, hospital or medical disinfectants.

     c.     In the event of amendments or supplements to the federal Clean Air Act or the federal regulations adopted pursuant thereto that are less stringent than those in effect on January 19, 2017, the department shall, notwithstanding the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), immediately upon filing proper notice with the Office of Administrative Law, adopt such rules and regulations as the commissioner deems necessary to ensure that the rules and regulations adopted pursuant to this section in effect at the time of the federal changes are not weakened.  Such rules and regulations shall remain in effect for a period not to exceed 12 months, and
shall, thereafter, be amended, adopted, or readopted by the commissioner in accordance with the requirements of the “Administrative Procedure Act.”

(cf:  P.L.1999, c.100, s.2)

 

     3.    Section 4 of P.L.1977, c.74 (C.58:10A-4) is amended to read as follows:

     4.    The commissioner shall have power to prepare, adopt, amend, repeal , and enforce, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), reasonable codes, rules and regulations to prevent, control or abate water pollution and to carry out the intent of [this act] P.L.1977, c.74 (C.58:10A-1 et seq.) , either throughout the State or in certain areas of the State affected by a particular water pollution problem. Such codes, rules and regulations may include, but shall not be limited to, provisions concerning: 

     a.     The storage of any liquid or solid pollutant in a manner designed to keep it from entering the waters of the State;

     b.    The prior submission and approval of plans and specifications for the construction or modification of any treatment work or part thereof;

     c.     The classification of the surface and ground waters of the State and the determination of water quality standards for each such classification; 

     d.    The limitation of effluents, including toxic effluents as indicated herein;

     e.     The determination of pretreatment standards;

     f.     The establishment of user charges and cost recovery requirements in conformance with the Federal Act;

     g.    The establishment of a civil penalty policy governing the uniform assessment of civil penalties in accordance with section 10 of P.L.1977, c.74 (C.58:10A-10). 

     In the event of amendments or supplements to the Federal Act or the federal regulations adopted pursuant thereto that are less stringent than those in effect on January 19, 2017, the commissioner shall, notwithstanding the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), immediately upon filing proper notice with the Office of Administrative Law, adopt such rules and regulations as the commissioner deems necessary to ensure that the rules and regulations adopted pursuant to this section in effect at the time of the federal changes are not weakened.  Such rules and regulations shall remain in effect for a period not to exceed 12 months, and shall, thereafter, be amended, adopted, or readopted by the commissioner in accordance with the requirements of the “Administrative Procedure Act.”

(cf:  P.L.1990, c.28, s.2)

     4.    Section 4 of P.L.1977, c.224 (C.58:12A-4) is amended to read as follows:

     4.    a.  The commissioner shall prepare, promulgate, and enforce and may amend or repeal:

     (1)   State primary drinking water regulations that at any given time shall be no less stringent than national regulations in effect at that time;

     (2)   State secondary drinking water regulations; and

     (3)   other regulations to protect potable waters, regulate public and nonpublic water systems, and carry out the intent of the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.) in any one or more areas of the State requiring a particular safe drinking water program.

     b.    Subject to section 5 of P.L.1977, c.224 (C.58:12A-5), State primary drinking water regulations shall apply to each public water system in the State, except that such regulations shall not apply to a public water system:

     (1)   Which consists only of distribution and storage facilities and which does not have any collection and treatment facilities;

     (2)   Which obtains all of its water from, but is not owned or operated by, a public water system to which such regulations apply;

     (3)   Which does not sell water to any person; and

     (4)   Which does not provide water for potable purposes to any carrier which conveys passengers in interstate commerce.

     c.     The commissioner shall adopt and implement adequate procedures, promulgate appropriate rules and regulations, and issue such orders as are necessary for the enforcement of State primary drinking water regulations and for the provision of potable water of adequate volume and pressure; such regulations and procedures to include but not be limited to:

     (1)   Monitoring and inspection procedures;

     (2)   Maintenance of an inventory of public water systems in the State;

     (3)   A systematic program for conducting sanitary surveys of public water systems throughout the State or in a part thereof, whenever the commissioner determines that such surveys are necessary or advisable;

     (4)   The establishment and maintenance of a program for the certification of laboratories conducting analytic measurements of drinking water contaminants specified in the State primary and secondary drinking water regulations; and the assurance of the availability to the department of laboratory facilities certified by the administrator and capable of performing analytic measurements of all contaminant specified in the State primary and secondary drinking water regulations;

     (5)   The establishment and maintenance of programs concerning plans and specifications for the design, construction and operation of water systems, which programs:

     (a)   require all such plans and specifications to be first approved by the department before any work thereunder shall be commenced;

     (b)   assure that all new public water systems have adequate technical, managerial and financial capacity to comply with the provisions of the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.), and all regulations promulgated by the department pursuant to that act prior to approval of such systems to distribute water for potable purposes;

     (c)   assure that all water systems will comply with any rules and regulations of the department; and

     (d)   assure and certify compliance with the State primary drinking water regulations or such requirements of the State secondary drinking water regulations as the commissioner deems applicable, and will deliver water with sufficient quality, volume and pressure to the users of such systems.

     d.    The commissioner shall keep such records and make such reports with respect to the duties, powers, and responsibilities of the commissioner under subsections a. and c. of this section as may be required by regulations established by the administrator pursuant to the federal act.

     e.     The commissioner may require any public water system to install, use, and maintain such monitoring equipment and methods, to perform such sampling, to maintain and retain such records of information from monitoring and sampling activities, to submit such reports of monitoring and sampling results, and to provide such other information as [he] the commissioner may require to assist in the establishment of regulations under the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.), or to determine compliance or noncompliance with the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.) or with regulations promulgated pursuant to the provisions of P.L.1977, c.224 (C.58:12A-1 et seq.).

     f.     The commissioner shall have the right to enter any premises upon presentation of appropriate credentials during regular business hours, in order to test, inspect or sample any feature of a public water system, and in order to inspect, copy or photograph any monitoring equipment or records required to be kept under provisions of P.L.1977, c.224 (C.58:12A-1 et seq.).

     g.    (Deleted by amendment, P.L.1999, c.176).

     h.    In the event of amendments or supplements to the federal act or the federal regulations adopted pursuant thereto that are less stringent than those in effect on January 19, 2017, the commissioner shall, notwithstanding the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), immediately upon filing proper notice with the Office of Administrative Law, adopt such rules and regulations as the commissioner deems necessary to ensure that the rules and regulations adopted pursuant to this section in effect at the time of the federal changes are not weakened.  Such rules and regulations shall remain in effect for a period not to exceed 12 months, and shall, thereafter, be amended, adopted, or readopted by the commissioner in accordance with the requirements of the “Administrative Procedure Act.”

(cf:  P.L.1999, c.176, s.6)

 

     5.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would authorize the Department of Environmental Protection (DEP) to maintain, at a minimum, certain federal requirements in effect on January 19, 2017 concerning endangered species, air pollution, water pollution, and safe drinking water.  Specifically, this bill would amend “The Endangered and Nongame Species Conservation Act,” “Air Pollution Control Act (1954),” the “Water Pollution Control Act,” and the “Safe Drinking Water Act” to authorize the DEP to take certain rulemaking actions to ensure that New Jersey’s rules and regulations aren’t weakened due to changes in the related federal statutes. 

     This bill is intended ensure that certain environmental regulations in the State are not weakened solely because of actions taken at the federal level.  In a state as densely populated as New Jersey, it is important to protect the State’s air, land, and water resources.  For decades, New Jersey and its residents have relied on federal laws, including the “Endangered Species Act of 1973,” the “Clean Air Act,” the “Federal Water Pollution Control Act Amendments of 1972,” and the “Safe Drinking Water Act,” and the respective federal implementing regulations, along with corresponding comparable State laws, to help protect New Jersey’s public health, environment, and natural resources.  The federal Endangered Species Act of 1973 generally prohibits activities affecting threatened and endangered species listed pursuant to that act unless authorized by a permit from the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate.  The federal Clean Air Act regulates the discharge of air pollutants into the atmosphere.  The federal Clean Water Act regulates the discharge of pollutants into water.  The federal Safe Drinking Water Act establishes drinking water standards for drinking water systems. 

     These federal laws establish standards that serve as the baseline level for environment, natural resources, and public health protection, while authorizing states to adopt more protective measures.  However, beginning in 2017, the President and United States Congress have engaged in efforts to weaken these federal laws and the protections they provide.  This bill is intended to ensure continued protections for the environment, natural resources, and public health in the State even if these federal laws are weakened, and would retain the protections afforded under the federal laws and implementing regulations in effect on January 19, 2017, regardless of actions taken at the federal level to weaken those protections. 

     Specifically, the DEP Commissioner would be authorized, notwithstanding the provisions of the “Administrative Procedure Act,” to immediately upon filing proper notice with the Office of Administrative Law, adopt such rules and regulations as the commissioner deems necessary to ensure the State’s rules and regulations under the abovementioned four statutes are not weakened by changes at the federal level.  These rules and regulations would remain in effect for a period not to exceed 12 months, and would thereafter be amended, adopted, or readopted by the commissioner in accordance with the requirements of the “Administrative Procedure Act.” 

     This bill is similar to legislation pending in California, as Senate Bill 49, entitled the “California Environmental, Public Health, and Workers Defense Act of 2017.”