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In re Adoption of Amendments to N.J.A.C. 7 27-16

Decided: November 14, 1990.

IN THE MATTER OF THE ADOPTION OF AMENDMENTS TO N.J.A.C. 7:27-16


On appeal from Department of Environmental Protection.

J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

[244 NJSuper Page 337] This is an appeal by the National Paint and Coatings Association, Inc. (NPACA)*fn1 challenging regulatory amendments promulgated by the New Jersey Department of Environmental Protection (DEP) which relate to the automobile refinishing business. The amended regulations that are being challenged are intended to reduce the automobile refinishing industry's emission of Volatile Organic Substances (VOS) into the atmosphere.

Those regulations were promulgated in response to an order of the United States District Court, District of New Jersey, based on the federal Clean Air Act (Act), 42 U.S.C. § 7401 et seq. See American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J.1987), aff'd, 871 F.2d 319 (3d Cir.1989). We conclude that the regulations are valid.

I

One of the intended purposes of the Act is to control ozone pollution near ground level so as to "enhance the quality of the nation's air resources." 42 U.S.C. § 7401(b)(1), § 7470. The automotive refinishing industry has been identified by the Federal Environmental Protection Agency (EPA) as a source of ozone pollution, harmful to our nation's resources. Pursuant to the Act the EPA has promulgated ambient air quality standards defining limits on the atmospheric concentration which will be tolerated for identified pollutants. 42 U.S.C. § 7409(b)(1). States are required by the Act to adopt measures to reduce air pollution within the standards set by the EPA. The blueprint for such reduction is called a State Implementation Plan (SIP) which must be approved by EPA. 42 U.S.C. § 7410. Once approved, the state is obliged to follow its SIP. American Lung Ass'n of N.J. v. Kean, supra, at 1287-1288.

New Jersey's first SIP was promulgated in 1973. Id. at 1288. As amended in 1983, the SIP extended New Jersey's deadline for "ozone compliance" through the end of December 1987. Ibid. The 1983 amended SIP provided that part of New Jersey's plan to bring itself into compliance required the adoption of "extraordinary measures, including the regulation of automobile refinishing operations." It was contemplated that the automobile refinishing operations would be required to utilize either "enclosed spray booths equipped with add-on control devices, such as incinerators or absorbers," or coatings (i.e., paints) that emit a low percentage of VOS while being applied to surfaces.

American Lung Ass'n of N.J. was filed prior to September 1987 by citizens groups claiming that New Jersey was in violation of the Act because it failed to implement the measures enumerated in its SIP. Id. at 1286-87. The plaintiffs contended, among other things, that the State of New Jersey failed to promulgate, adopt, and enforce regulations limiting the emission of VOS in connection with automobile refinishing. Id. at 1286-1287. Judge Ackerman on November 19, 1987 ordered DEP to publish its proposed regulations limiting VOS emissions by December 19, 1988 and to adopt such regulations by April 19, 1989.

On December 19, 1988, DEP published proposed regulations. 20 N.J.R. 3052(a). The proposed regulations required automobile refinishers to use coatings with a maximum VOS emission rate of five pounds per gallon or to achieve the equivalent results through the use of add-on pollution control devices. Those refinishing fewer than 25 vehicles per week were declared to be exempt from the regulations' requirements.

The proposed regulations were based on reports or studies prepared by: (1) EPA's Control Technology Center in October 1988 ("the EPA Report"); (2) the Radian Corporation for DEP in 1987 ("the Radian Report"); (3) the New York State Department of Environmental Conservation in August 1987; and (4) the California Air Resources Board ("CARB") in April 1982.

Publication of the proposed regulations generated substantial objections from the regulated industry, particularly from coating manufacturers. Among those submitting objections were E.I. DuPont de Nemours & Co. ("DuPont") and appellant NPACA. Public hearings were held on January 19, 1989 and January 23, 1989. Testimony was provided by representatives of the regulated industry and representatives of various citizens groups.

On June 19, 1989, DEP adopted the regulations that form the subject matter of this appeal. N.J.A.C. 7:27-16.5; 21 N.J.R. 1699(b). Those regulations differed from the proposed regulations

in two respects. First, instead of a requirement that all finishing coatings not exceed 5.0 pounds of VOS emissions per gallon of paint, the regulations, as adopted, required that coatings used for "base coats" not exceed 6 pounds of VOS emissions per gallon and coatings used for "clear coats" not exceed 4.4 pounds of VOS emissions per gallon of paint. All other coatings were limited to the original 5.0 pounds of VOS emissions per gallon. Ibid. Second, instead of exempting operators refinishing less than 25 vehicles per week, the regulations, as adopted, exempted operators using less than 50 gallons of coating per week. N.J.A.C. 7:27-16.5(k)(2).

II

The parties to this appeal agree that the standard governing appellate review of the regulations requires us to answer three questions:

(1) whether the agency action violates the enabling act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policy; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [ Public Serv. Elec. & Gas Co. v. N.J. Dept. of Environ., 101 N.J. 95, 103, 501 A.2d 125 (1985)]

Regulations are presumptively valid and the burden rests with an appellant to establish their invalidity. Medical Society of New Jersey v. Dept. of Law & Public Safety, Div. of Consumer Affairs, 120 N.J. 18, 25, 575 A.2d 1348 (1990); Bergen Pines County Hosp. v. New Jersey Dept. of Human Services, 96 N.J. 456, 477, 476 A.2d 784 (1984). However, the presumption of validity attaches only if the regulations are within the ...


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