SENATE CONCURRENT RESOLUTION No. 29

STATE OF NEW JERSEY

INTRODUCED JANUARY 22, 1996

By Senator SCOTT

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 of an Executive Branch 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 "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), as amended and supplemented by P.L.1975, c.326, to provide a regulatory scheme for the environmentally sound management of solid waste and to provide directives concerning county control of solid waste flow through the development and implementation of district solid waste management plans. Section 11 of P.L.1975, c.326 (C.13:1E-20) requires every county and the Hackensack Meadowlands District to develop a 10-year plan for self-sufficiency in solid waste disposal capacity.

    b. Section 6 of P.L.1970, c.39 (C.13:1E-6) requires the Department of Environmental Protection and Energy (hereinafter referred to as "the department") to "develop, formulate, promulgate and review for the purpose of revising or updating not less than once every 2 years, a Statewide solid waste management plan which shall encourage the maximum practicable use of resource recovery procedures and which shall provide the objectives, criteria and standards for the evaluation of [district] solid waste management plans...". The department has adopted the Solid Waste Management State Plan Update 1993 - 2002, Section I: Municipal and Industrial Solid Waste (hereinafter referred to as "the State Plan Update") pursuant to a notice of adoption published in the New Jersey Register on January 18, 1994.

    c. The State Plan Update is the second update of the statutorily mandated plan by the department since the enactment of P.L.1975, c.326. The State Plan Update incorporates the various policy recommendations of the Final Report of the Emergency Solid Waste Assessment Task Force, which were accepted by the Governor on November 16, 1990, as well as the policy directives contained in the "Solid Waste Policy Guidelines" document issued by the department on June 25, 1991, which further defines the basic planning approach to implementing the State's revised solid waste management policies.

    3. a. The Legislature finds that the State Plan Update contains policy directives and solid waste management implementation strategies, enumerated in subsections b. and c. of this section, that are inconsistent with the intent of the Legislature as expressed in the language of P.L.1970, c.39, P.L.1975, c.326 and P.L.1987, c.102.

    b. (1) The State Plan Update adopts a hierarchy of solid waste management practices which favors, in a descending order of preference, source reduction, source separation and recycling, composting of leaves, grass and food waste, household hazardous waste collection, materials recovery, solid waste composting, in-state landfilling and incineration, and out-of-state landfilling.

    (2) The Legislature finds that the hierarchy adopted in the State Plan Update is inconsistent with the intent of the Legislature as expressed in the language of the "Solid Waste Management Act," because the hierarchy as set forth in the State Plan Update neither encourages resource recovery nor provides for the maximum practicable use of "resource recovery" as defined in the "Solid Waste Management Act." Section 2 of P.L.1970, c.39 (C.13:1E-2) declares that it is the policy of the State to encourage resource recovery. Section 12 of P.L.1975, c.326 (C.13:1E-21) requires every county and the Hackensack Meadowlands District to apply a solid waste disposal strategy which includes the maximum practicable use of resource recovery procedures. Section 3 of P.L.1970, c.39 (C.13:1E-3) defines "resource recovery" as "the collection, separation, recycling and recovery of metals, glass, paper and other materials for reuse; or the incineration of solid waste for energy production and the recovery of metals and other materials for reuse."

    c. (1) The State Plan Update fails to include the district solid waste management planning and implementation responsibilities of the HMDC with its summaries of the district solid waste management plans.

    (2) The Legislature finds that this omission is inconsistent with the intent of the Legislature because section 10 of P.L.1975, c.326 (C.13:1E-19) designates the Hackensack Meadowlands District as a solid waste management district subject to the provisions of the "Solid Waste Management Act." The failure to include a district solid waste management plan for the Hackensack Meadowlands District is inconsistent with the provisions of the "Solid Waste Management Act."

    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 the Department of Environmental Protection and Energy.

    5. a. The Commissioner of the Department of Environmental Protection and Energy shall, pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, have 30 days following transmittal of this resolution to amend or withdraw the State Plan Update.

    b. Because the provisions of the State Plan Update which the Legislature, in section 3 of this concurrent resolution, has determined to be inconsistent with the intent of the Legislature are incompatible with the district planning and implementation responsibilities prescribed in the language of P.L.1970, c.39 and P.L.1975, c.326, the Legislature recommends that the Commissioner of the Department of Environmental Protection and Energy amend the State Plan Update.

    c. If the Commissioner does not withdraw or amend the State Plan Update, the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the State Plan Update, in whole or in part, or to prohibit the State Plan Update, in whole or in part, from taking effect.

STATEMENT

    This concurrent resolution sets forth the Legislature's finding, authorized pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, that provisions of the Solid Waste Management State Plan Update 1993 - 2002 (the "State Plan Update"), adopted by the Department of Environmental Protection and Energy on January 18, 1994, are not consistent with the intent of the Legislature as expressed in the statutes the State Plan Update is intended to implement.

    Specifically, this concurrent resolution finds that the State Plan Update contains policy directives and solid waste management implementation strategies that are inconsistent with the intent of the Legislature as expressed in the language of the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), as amended and supplemented by P.L.1975, c.326.

    The inconsistencies with the intent of the Legislature set forth in this concurrent resolution are as follows:

    (1) The State Plan Update adopts a hierarchy of solid waste management practices which emphasizes source reduction, composting, source separation and recycling techniques. Section 12 of P.L.1975, c.326 (C.13:1E-21) expressly provides that every district solid waste management plan must apply a solid waste disposal strategy which includes the maximum practicable use of resource recovery procedures. This section neither establishes nor authorizes the DEPE to establish a hierarchy of preferred solid waste management practices for the counties to follow, nor does it contain any expressed or implied preference for source reduction techniques.

    Current legislation, Assembly Bill No. 565 of 1994, would amend this section of law to establish a hierarchy of preferred solid waste management practices similar to that embodied in the State Plan Update.

    (2) The State Plan Update fails to include the district planning and implementation responsibilities of the HMDC with its summaries of the district solid waste management plans. Section 10 of P.L.1975, c.326 (C.13:1E-19) designates the Hackensack Meadowlands District as a solid waste management district subject to the provisions of the "Solid Waste Management Act." The failure of the State Plan Update to include a district solid waste management plan for the Hackensack Meadowlands District is inconsistent with the provisions of the "Solid Waste Management Act."

    Under the provisions of Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the department would have 30 days following transmittal of this concurrent resolution to the Governor and the Commissioner of DEPE to amend or withdraw the State Plan Update or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the State Plan Update, or any portion thereof, or to prohibit the State Plan Update, or any portion thereof, from taking effect.

    Because the provisions of the State Plan Update which the Legislature has determined to be inconsistent with the intent of the Legislature are incompatible with the district planning and implementation responsibilities prescribed in the language of P.L.1970, c.39 and P.L.1975, c.326, this concurrent resolution recommends that the Commissioner of the Department of Environmental Protection and Energy amend the State Plan Update.

Determines that Solid Waste Management State Plan Update 1993 - 2002 is not consistent with legislative intent.