On appeal from Promulgation of Regulations by New Jersey Department of Environmental Protection.
Antell, Joelson and McElroy. The Opinion of the Court was delivered by, Antell, P.J.A.D. Joelson, J.A.D., dissenting.
[193 NJSuper Page 679] The New Jersey Department of Environmental Protection (DEP) is responsible for issuing permits as part of a program regulating the discharge of pollutants into surface waters. Its authority is derived from the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., which was enacted in order for the State of New Jersey to administer federally mandated programs aimed at prohibiting all discharges of pollutants into surface waters except those which conform
with a National Pollutant Discharge Elimination System (NPDES) permit issued by the United States Environmental Protection Agency (USEPA) or by a state having a similar permit system approved by the USEPA. The federal program is set forth in the Federal Clean Water Act, 33 U.S.C.A. § 1251 et seq. The New Jersey Water Pollution Control Act has a purpose similar to the federal legislation and among other things is intended to implement the federal act by the issuance of New Jersey Pollutant Discharge Elimination System (NJPDES) permits to municipal, industrial and thermal dischargers.
Under N.J.S.A. 58:10A-9 it is directed that DEP "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." These appeals, which we have consolidated sua sponte, are taken from the fee structure promulgated by DEP under N.J.A.C. 7:14A-1.8(c)(3)(ii) for the period between March 1982 through June 1983 and from DEP's determination as to the amount of a credit for excess fee assessments calculated during the period March 1981 through February 1982. Appellants, consisting of a number of companies classified as thermal and industrial dischargers, maintain that the fee assessments are unrelated to expenses involved in the processing, monitoring and administering of the permit program and that the assessment methodology is therefore arbitrary, capricious and unreasonable.
Concisely, the method chosen by DEP to distribute the costs of processing, monitoring and administering the program among the permittees purports to be based upon the volume of effluent discharged by each with the largest volume dischargers bearing the greatest share of the cost. Appellants argue that no relationship exists between volume of discharge and regulatory costs, pointing out that their repeated requests of DEP to demonstrate such a relationship have produced nothing
beyond the agency's unexplained insistence that such a relationship necessarily exists.
On this appeal little is said by DEP beyond adherence to the dogma that "regulatory costs must generally increase as the size of permittee's pollutant discharge increases." It states as a fact that to accomplish its statutory purpose it must allocate regulatory resources commensurately with the relative dangers posed by various dischargers. Nowhere, however, does it demonstrate in terms of work hours expended or by any other gauge that the cost of processing, monitoring and administering the permit of a high volume single outlet discharger is any greater than the cost made necessary by a small single outlet discharger. Nor does it show how the mere volume alone of a permittee's discharge reflects its potential injuriousness. DEP's assertions to the contrary are couched in conclusory form and appear to be nowhere anchored to the facts of record. We therefore note our agreement with appellants' contention that the volume based fee formula is neither cost-related nor related to the hazard posed by the individual permittee.
We disagree, however, with appellants' premise that the enabling statute requires that DEP determine its fee structure on a permit-specific cost-related basis. We read N.J.S.A. 58:10A-9 to require only that the individual fees be "reasonable" and that in the aggregate they not exceed "the estimated costs of processing, monitoring and administering the NJPDES permits." The only obligation imposed upon DEP is that the agency must find some reasonable way of apportioning its operating expenses among the permittees. Whether this is done on an individual cost basis or in some other way is a decision the legislature has left to the agency. Where the legislature intends that a license fee relate to the regulatory expense involved in processing the application it has no difficulty in expressing itself. See, for example, N.J.S.A. 5:12-139 which provides that the issuance fee for a casino license "shall
be based upon the cost of investigation and consideration of the license application. . . ."
Among the choices open to DEP in allocating its costs, of course, is that of charging each permittee an equal share of the expenses. Obviously, this course was not followed for the reason that it would place the same financial burden on a permittee which discharges a low volume of low toxic effluent as on one having a large volume of high toxic waste. In determining to avoid such a result we can hardly say that DEP acted unreasonably. Yet, from the contention asserted by appellants themselves that the volume based fee structure is unrelated to costs, it would appear that the permit-specific cost-related fee schedule which they advocate would probably bring about the very result which DEP quite reasonably wants to ...