SENATE CONCURRENT RESOLUTION No. 102
STATE OF NEW JERSEY
INTRODUCED OCTOBER 24, 1996
By Senator SCOTT
A Concurrent Resolution concerning legislative review of regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey and invalidating certain regulations of the Department of Environmental Protection.
Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):
1. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted 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.
2. a. The Legislature enacted the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), to regulate the discharge of pollutants into the State's waters. The Legislature intended that the State program be consistent with the "Federal Water Pollution Control Act Amendments of 1972," 33 U.S.C. §1251 et seq. The foundation of this regulatory program was a permit system that establishes the amount of pollutants that a person may lawfully discharge into the State's waters. Any person discharging pollutants into the State's waters is required to obtain a New Jersey Pollutant Discharge Elimination System (NJPDES) permit, or an equivalent permit from the federal government.
b. Section 9 of P.L.1977, c.74 (C.58:10A-9) provides that the Commissioner of Environmental Protection "shall, in accordance with a fee schedule adopted by regulation, establish and charge reasonable annual administrative fees, which fees shall be based upon, and shall not exceed, the estimated cost of processing, monitoring and administering the NJPDES permits."
c. The fee structure adopted by the commissioner for NJPDES permits for wastewater facilities provides for individual permit fees based on a complicated formula reflecting the facility's potential environmental impact, the billing rate for the category of discharge, and the minimum fee for the category of discharge. Facilities required to be permitted include those which discharge industrial wastewater, sanitary wastewater, non-contact cooling water, decontaminated ground water, stormwater runoff or other types of treated and untreated types of wastewater to the surface or ground waters of the State. Fees for NJPDES permits related to site remediation are based on the actual cost to the department of processing, administering, and monitoring those permits.
d. The NJPDES permit fees are used to pay personnel costs for the permitting, monitoring, and enforcement of the NJPDES permit requirements. In addition to the actual personnel costs, the fees also pay for fringe benefits of these personnel, including pension, health, and insurance benefits. Additionally, routine departmental operating costs are paid for by these fees, including office supplies, printing, copiers, library supplies, telephone services, postage, vehicle rental and maintenance, legal advertising, and travel. Other major program expenses paid in part by NJPDES permit fees include charges for professional services submitted by the Office of the Attorney General, the United States Geological Survey, the Department of Health Laboratory and the DEP Environmental Laboratory, the Office of Administrative Law, and the Office of Telecommunications and Information Systems.
e. Because of the extensive array of program costs now being supported by NJPDES permits, and because of program inefficiencies, NJPDES permit fees for many if not most permit holders are unreasonable.
3. By the passage of Concurrent Resolution No. 26 of 1996, filed by the Secretary of State on July 19, 1996, the Legislature found that the regulations of the Department of Environmental Protection establishing a fee schedule for NJPDES permittees and applicants, adopted at N.J.A.C.7:14A-1.8, was not consistent with the intent of the Legislature as expressed in the language of the "Water Pollution Control Act" because the high level of the NJPDES fees were not "reasonable" and because the fee schedule allows for the imposition of fees for costs unrelated to the "processing, monitoring and administering the NJPDES permits" as required by section 9 of P.L.1977, c.74 (C.58:10A-9). Senate Concurrent Resolution No. 26 of 1996 further determined that, pursuant to.paragraph 6 of the Constitution of the State of New Jersey, if the Commissioner of the Department of Environmental Protection did not amend or withdraw the regulation within 30 days of passage of Senate Concurrent Resolution No. 26, the Legislature was authorized under the Constitution to invalidate the regulation in whole or in part.
4. The Legislature finds that the 30 day period given to the Commissioner of Environmental Protection in Senate Concurrent Resolution No. 26 of 1996 has expired and that the Commissioner of Environmental Protection has failed to amend or withdraw N.J.A.C.7:14A-1.8 in a manner that is consistent with the intent of the Legislature.
5. The Legislature therefore is, by the passage of this Concurrent Resolution, exercising its Constitutional powers pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey to invalidate, in whole, the regulations of the Department of Environmental Protection that are promulgated at N.J.A.C.7:14A-1.8. The regulations promulgated at N.J.A.C.7:14A-1.8 are invalidated.
STATEMENT
This concurrent resolution embodies the finding of the Legislature that the regulations of the Department of Environmental Protection concerning a fee schedule for NJPDES permittee and applicants, codified at N.J.A.C.7:14A-1.8, is not consistent with legislative intent pursuant to Article V, Section IV, paragraph 6 of State Constitution.
Previously the Legislature enacted Senate Concurrent Resolution No. 26 of 1996 which initially made this finding and gave the Commissioner of Environmental Protection 30 days in which to amend or withdraw the regulation or the Legislature would be empowered to pass a second Concurrent Resolution to invalidate the regulations in whole or in part. Because the regulations were not amended or withdrawn to address the inconsistency with legislative intent, this second Concurrent Resolution is necessary to invalidate the adopted regulations. Upon passage of this Concurrent Resolution, the regulations adopted at N.J.A.C.7:14A-1.8 will be invalidated in whole.
Finds that NJPDES fee regulations of the DEP invalid due to inconsistency with legislative intent.