[First Reprint]

SENATE CONCURRENT RESOLUTION No. 26

 

STATE OF NEW JERSEY

 

INTRODUCED JANUARY 22, 1996

 

 

By Senators SCOTT and SACCO

 

 

A Concurrent Resolution concerning legislative review of Department of Environmental Protection and Energy regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

 

    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 inteded 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. At the center this regulatory program was a permit system that establishes the amount of pollutants that a person may lawfully discharge into the State's waters. Thus, 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 1[and Energy]1 "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. Wastewater treatment plants include facilities 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 now 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 1[DEPE] DEP1 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. There were 34 industrial discharge NJPDES permit holders alone who were assessed annual permit fees of over $50,000 during the fiscal years 1988 to 1992. Five of these industrial discharges were assessed NJPDES permit fees in fiscal year 1992 of over $500,000, the highest being over $700,000. One permittee saw its permit fee rise from $1,300 in fiscal year 1988 to $621,000 in fiscal year 1992. Other categories of permittees, municipal and significant industrial users, also saw their permit fees rise to unreasonable levels.

 

    3. The Legislature finds that the fee schedule for NJPDES permittees and applicants, promulgated at N.J.A.C.7:14A-1.8, is not "reasonable" and 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). The Legislature therefore finds that these regulations are not consistent with the intent of the Legislature as expressed in the language of the "Water Pollution Control Act," which the regulations are intended to implement.

 

    4. The Secretary of the Senate and the Clerk of the General Assembly shall transmit a duly authenticated copy of this concurrent resolution to the Governor and the Commissioner of Environmental Protection 1[and Energy]1.

 

    5. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Commissioner of Environmental Protection 1[and Energy]1 shall have 30 days following transmittal of this resolution to amend or withdraw the regulations codified in N.J.A.C.7:14A-1.8 or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the regulations codified in N.J.A.C.7:14A-1.8, in whole or in part.

 

 

 

Determines that NJPDES fee schedule is inconsistent with legislative intent.