New Jersey-2010-ACR132-Introduced

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 General Assembly of the State of New Jersey (the Senate concurring):

1. Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that 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. In 1954, the Legislature enacted the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.) and subsequent amendments did not affect the substance of the provision of the law cited to as the legislative authority by which the Department of Environmental Protection adopted the pertinent rules and regulations. But the Legislature enacted in 1993, P.L.1993, c.69, section 6 of which addressed adoption of air pollution control rules and regulations and was compiled and allocated to the same area of the law, chapter 2C of Title 26 of the Revised Statutes.

3. Section 6 of P.L.1993, c.69 (C.26:2C-8.11) provides for the adoption of rules and regulations by the Department of Environmental Protection for the implementation of specific mandated air pollution control measures identified in the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., and any subsequent amendments or supplements to that act, and consistent with any rules, regulations, or guidelines that may be promulgated by the United States Environmental Protection Agency. Among other specific mandated air pollution control measures, section 6 of P.L.1993, c.69 lists correction of reasonably available control technology rules for volatile organic compounds, reasonably available control technology rules for volatile organic compounds, reasonably available control technology rules for oxides of nitrogen, and new source review regulations for volatile organic compounds, oxides of nitrogen, and carbon monoxide.

4. Section 8 of P.L.1954, c.212 (C.26:2C-8) provides that the department has the power to formulate and promulgate, amend and repeal codes and rules and regulations preventing, controlling and prohibiting air pollution throughout the State. Because this type of generic authorization is found throughout the statutes to facilitate the implementation of laws in the State, it cannot be said that the Legislature, in providing very general rulemaking authority in this manner pursuant to section 8 of P.L.1954, c.212, intended to impose specific, onerous requirements and to require the very specific air pollution reduction through the implementation of a very specific remedy that may not be the best or only method of achieving that emissions reduction. Furthermore, pursuant to section 6 of P.L.1993, c.69 (C.26:2C-8.11), the Legislature indicated intent to have rules and regulations limited to specific federally mandated air pollution control measures and the requirements of the rules, regulations, and guidelines of the United States Environmental Protection Agency.

5. In 2009, the Department of Environmental Protection adopted in the April 20, 2009 New Jersey Register, 41 N.J.R. 1752, rules and regulations amending and establishing new rules and regulations in chapter 27 of Title 7 of the New Jersey Administrative Code and, more specifically for the purposes of this concurrent resolution, at N.J.A.C.7:27-16.2. Pursuant to N.J.A.C.7:27-16.2, certain external floating roof tanks are required to be equipped with domes.

6. The Department of Environmental Protection stated in its rule proposal in the August 4, 2008 New Jersey Register, 40 N.J.R. 4390(a), that new rules and amendments were proposed pursuant to the department's general authority to prevent, prohibit and control air pollution pursuant to section 8 of P.L.1954, c.212 (C.26:2C-8). It further stated that these rules and amendments are part of New Jersey's final State Implementation Plan revision - a revision to the written plan that describes the State's strategy for achieving and maintaining the National Ambient Air Quality Standards (NAAQS). The department stated that the federal "Clean Air Act," 42 U.S.C. s.7401 et seq., requires states with areas that do not meet the NAAQS - New Jersey among them - to develop a State Implementation Plan revision outlining the steps the State will take to reduce air pollution. The department stated that the new rules and amendments were being proposed to help New Jersey meet the federal 1997 eight-hour NAAQS for ozone by reducing volatile organic compound emissions and oxides of nitrogen emissions.

7. In the August 4, 2008 rule proposal, the Department of Environmental Protection also indicated that it had concluded from data from the South Coast Air Quality Management District in California that the cost-effectiveness of the dome requirement for existing external floating-roof tanks was $12,036 per ton of volatile organic compound emissions reduced. The regulated community has reported that the Department of Environmental Protection's cost-effectiveness analysis is flawed because of installation costs that were not considered, and the regulated community estimates the cost of per-ton volatile organic compound emissions reduced at $47,000. The regulated community also reports that - at this significant cost - 130 tons of reductions in volatile organic compound emissions are estimated to be realized by the imposition of the requirement and that this reduction represents only 0.04% of the Statewide inventory of volatile organic compound emissions.

8. Although the United States Environmental Protection Agency requires the Department of Environmental Protection to submit the State Implementation Plan revision outlining the steps the State will take to reduce air pollution, and further requires New Jersey to meet the federal 1997 eight-hour NAAQS for ozone by reducing volatile organic compounds, the United States Environmental Protection Agency does not require the reduction of volatile organic compounds by this specific remedy - i.e., the requirement of certain external floating-roof tanks to be equipped with domes.

9. For all the above reasons, the Legislature therefore finds that the Department of Environmental Protection rules and regulations adopted at N.J.A.C.7:27-16.2 as they pertain to the requirement of equipping certain external floating-roof tanks with domes, are not consistent with the intent of the Legislature as expressed in the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.).

10. 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.

11. 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 rules and regulations adopted at N.J.A.C.7:27-16.2 as they pertain to the requirement of equipping certain external floating-roof tanks with domes, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to prohibit the rules and regulations from taking effect in whole or in part.

STATEMENT

This concurrent resolution embodies the finding of the Legislature that the adopted regulations of the Department of Environmental Protection (DEP) at N.J.A.C.7:27-16.2 as they pertain to the requirement of equipping certain external floating-roof tanks with domes, are not consistent with the intent of the Legislature as expressed in the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.).

In 2009, the DEP adopted, under its general authority to prevent, prohibit and control air pollution pursuant to section 8 of P.L.1954, c.212 (C.26:2C-8), rules and regulations at N.J.A.C.7:27-16.2 requiring certain external floating-roof tanks to be equipped with domes. These rules and amendments are part of New Jersey's final State Implementation Plan revision - a revision to the written plan that describes the State's strategy for achieving and maintaining the National Ambient Air Quality Standards (NAAQS). The DEP also stated that the new rules and amendments were being proposed to help New Jersey meet the federal 1997 eight-hour NAAQS for ozone by reducing volatile organic compound emissions and oxides of nitrogen emissions.

The regulated community reported that the DEP cost-effectiveness analysis of $12,036 per ton of volatile organic compound emissions reduced for the dome requirement did not consider installation costs, and therefore is flawed. The regulated community estimates the cost of per-ton volatile organic compound emissions reduced at $47,000. The regulated community also reports that - at this significant cost - 130 tons of reductions in volatile organic compound emissions are estimated to be realized by the imposition of the requirement and that this reduction represents only 0.04% of the statewide inventory of volatile organic compound emissions.

Because the type of generic authorization the DEP cited as its authority to adopt the regulations is found throughout the statutes to facilitate the implementation of laws in the State, the Legislature finds that it is not the intent of the Legislature to authorize imposition of specific, onerous requirements and to require the very specific air pollution reduction through the implementation of a very specific remedy that may not be the best or only method of achieving that emissions reduction. Also, pursuant to section 6 of P.L.1993, c.69 (C.26:2C-8.11), the Legislature indicated intent to have rules and regulations limited to specific federally mandated air pollution control measures and the requirements of the rules, regulations, and guidelines of the United States Environmental Protection Agency. Neither the federal Clean Air Act nor the rules, regulations, or guidelines of the United States Environmental Protection Agency require the reduction of volatile organic compounds by this specific remedy of requiring certain external floating-roof tanks to be equipped with domes.

The Commissioner of Environmental Protection will have 30 days to amend or withdraw the rules and regulations, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to prohibit the rules and regulations from taking effect in whole or in part.