SCR28

SENATE CONCURRENT RESOLUTION No. 28

STATE OF NEW JERSEY

INTRODUCED JANUARY 22, 1996

By Senator SCOTT

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.

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 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.

2. a. The Legislature enacted the "Worker and Community Right to Know Act," P.L.1983, c.315 (C.34:5A-1 et seq.) to establish a comprehensive program for the disclosure by certain businesses of information about hazardous substances in the workplace and in the community and to provide a procedure whereby residents of the State may gain access to this information. As expressed in section 2 of P.L.1983, c.315 (C.34:5A-2) the intent of the Legislature was to establish a mechanism by which individuals could better understand hazardous substances in the environment and address the associated risks of these hazardous substances.

b. Section 4 of P.L.1983, c.315 (C.34:5A-4) provides that the "Department of Environmental Protection shall develop an environmental hazarous substance list which shall include the list of substances developed by the department for the purposes of the Industrial Survey Project, established pursuant to P.L.1970, c.33 (C.13:1D-1 et seq.) and any substance on the list established by the United States Environmental Protection Agency for reporting pursuant to 42 U.S.C.§11023 and may include other substances which the department, based on documented scientific evidence, determines pose a threat to the public health and safety." The environmental hazardous substances list currently includes over 300 environmental hazardous substances.

c. Section 4 of P.L.1983, c.315 (C.34:5A-4) also requires the department to develop an environmental survey. The environmental survey requires that certain information be supplied to the department concerning substances included on the environmental hazardous substance list. The required information includes the chemical name and Chemical Abstracts Service number of the substance; a description of the use of the substance at the facility; the quantity produced at the facility; the quantity brought into the facility; the quantity consumed at the facility; the quantity shipped out of the facility as a final product or in a product; the stack emissions of the substance from the facility; the non-point source emissions from the facility; the amount of the substance discharged into ground or surface water; the treatment methods and the raw wastewater volume and loadings; and the quantity and method of disposal of the substance. Further, the total quantity of environmental hazardous substances generated at the facility, the quantity recycled, and information pertaining to pollution prevention activities at the facility must be reported. Copies of the environmental survey must be transmitted to the department, the county health agency, and the local police and fire officials. The department is required to maintain files of the environmental surveys for 30 years. Any person may request a copy of an environmental survey from the department. In addition, the environmental survey must be maintained by the employer and shall be made available to facility employees within five working days of a request.

d. On January 3, 1994, at 26 N.J.R.123 the department proposed amendments to N.J.A.C.7:1G-2.1 to add several thousand substances to the list of environmental hazardous substances. None of the substances proposed to be added is included in the Industrial Survey Project list or in the list of substances pursuant to 42 U.S.C.§11023 and the department has furnished no documented scientific evidence that any of the substances proposed to be added pose a threat to the public health and safety. Further, section 24 of P.L.1983, c.315 (C.34:5A-24) provides that "[s]ubstances not included on .... the environmental hazardous substance list shall not be subject to the reporting provisions of this act." Further, the addition of thousands of substances to the environmental hazardous substance list will result in the generation of volumnious data that will effectively defeat the original intent of the Legislature by confunsing individuals with irrelevant information not pertinent to risk management.

3. a. The Legislature finds that the expanded environmental hazardous substance list contained in the proposed regulations at N.J.A.C.7:1G-2.1 is so voluminous and overinclusive that it prevents individuals from being able to effectievely "monitor and detect any adverse health effects attributable thereto," and that the proposed additions to the list contravene the clear and unequivocal text of the underlying act.

b. The Legislature therefore finds that this proposed regulation is not consistent with the intent of the Legislature as expressed in the language of the "Worker and Community Right to Know Act," which the regulation is 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.

5. 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 regulations amending N.J.A.C.7:1G-2.1 as proposed in 26 N.J.R.123 or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate in whole or in part the regulations proposed in 26 N.J.R.123 which amend N.J.A.C.7:1G-2.1.

STATEMENT

This concurrent resolution embodies the finding of the Legislature that regulations proposed by the Department of Environmental Protection, pursuant to the "Worker and Community Right to Know Act" concerning the contents of the environmental hazardous substance list are not consistent with legislative intent pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey. The proposed regulations were published at 26 N.J.R.123 and would amend N.J.A.C.7:1G-2.1. The proposed regulations would add thousands of additional substances onto the environmental hazardous substance list.

The legislative finding is based upon the finding that the addition of thousands of additional substances onto the list would result in the generation of voluminous data and would thus defeat the intent of the Legislature by confusing individuals with irrelevant information not pertinent to risk management. Additionally, the Legislature finds that the department did not produce scientific documentation to justify each of the substances to be added on the list as is required under the statutory language of the "Worker and Community Right to Know Act."

Because of these findings of inconsistency, the Legislature finds that the proposed regulations are inconsistent with legislative intent. Upon the adoption of this concurrent resolution by both houses of the Legislature, the Commissioner of Environmental Protection will have 30 days to amend or withdraw the proposed regulations. After the passage of that time period, the Legislature may exercise its authority under the Constitution to prohibit the proposed regulations, in whole or in part, from taking effect.

Determines that proposed list of environmental hazardous substances is inconsistent with legislative intent.