In re Complaint filed by Roxbury Township (9-10).

PROCEDURAL HISTORY.

Complaint filed.  On September 30, 2010, via email, a Complaint was filed by the Township Manager of Roxbury, which allege that N.J.A.C. 7:14A-15.15, a provision of Tier A Municipal Storm-Water General Permit NJ0141852, regarding Refuse Container & Private Catch Basin Retrofitting Ordinances is an unfunded mandate.  A summary of the Township of Roxbury Complaint may be viewed under Pleading Summaries.

To view the full version of the Roxbury Township Complaint, please click here.

Council publication.  Because of the identity of the issue raised, the Council ordered that the Complaint should be served on the Commissioner of the Department of Environmental Protection ("Commissioner") and on the officials listed in Council Rule 9a.  The Council also determined that the Commissioner would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

By letter of October 8, 2010, the Complaint was circulated to the above-noted officials, and the letter also provides a schedule of due dates for filings of pleadings, including:

• Answer(s) and any Motions directed to the Complaint (October 28, 2010).
• Claimant response(s) to such Motions (November 11, 2010).
• Requests to Appear as Amicus Curiae (November 11, 2010).
• Objections to Requests to Appear as Amici Curiae (November 15, 2010).

Due dates extended. On October 14, 2010, a letter requesting a thirty (30) day extension from the October 28 deadline to file an answer and motion to dismiss was submitted on behalf of Respondent Commissioner of Environmental Protection. 

In response to the above event, by letter dated October 22, 2010, the Council granted Respondent a 30 day extension to answer. To view a copy of the Council's letter to all parties and State officials granting the extension, please click here.  The new filing dates are:

• Answer and Motion to Dismiss by Respondent: November 24, 2010.
• Requests to Appear as Amici Curiae: December 3, 2010.
• Objections to Requests to Appear as Amici Curiae: December 10, 2010.
• Claimant response(s) to Motion to Dismiss: December 15, 2010.

Answer and Motion to Dismiss.  On November 23, 2010, an Answer and a Motion to Dismiss the Complaint was filed on behalf of Respondent Commissioner of Environmental Protection.  A summary of that pleading may be viewed under Pleading Summaries.

Request to Appear as Amici Curiae.  On November 11, a Request to Appear as Amici Curiae in this proceeding was filed by

•   the New Jersey State League of Municipalities.

A Summary of the filed request may be accessed by clicking on the name of the Requester.

Council approves amici request.  By e-mail dated November 17, the Council notified all parties that the Council approved the Request filed on behalf of the New Jersey State League of Municipalities (NJSLOM), to Appear as Amici Curiae in this matter.

In the November 17 e-mail, the Council also advised that it would permit Respondent the opportunity to object to the request to appear of the New Jersey State League of Municipalities (NJSLOM), by no later than December 3, 2010.

Respondent's request in Response to the Request to Appear.  On November 29, 2010, a telephone call was made on behalf of Respondent Commissioner of Environmental Protection regarding the Request to Appear filed by the New Jersey State League of Municipalities (NJSLOM).

Council issues Notice of Hearing.  On June 3, 2011, via email, the Council informed all interested parties in their Notice of Hearing in the Roxbury Township Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  June 22, 2011, at 1:00 p.m.

Place of Hearing:  Committee Room 4, 1st floor, State House Annex, Trenton, NJ.

Purpose of Hearing:  To hear legal argument of Claimant Roxbury Township, and Respondent State of New Jersey Department of Environmental Protection, regarding Notice of Motion for Summary Decision.

Claimant files a supplement to correct record of argument presented at June 22, 2011 hearing.  On July 19, 2011, via e-mail the Council recieved a letter on behalf of the Township of Roxbury as a supplement in order to correct the record of the argument presented on June 22, 2011.

To view the full version of the Claimant's supplement, please click here.

Respondent files a response to the supplemental letter of the Township of Roxbury.  On July 25, 2011, via e-mail the Council recieved a letter on behalf of the Respondent, State of New Jersey, Department of Environmental Protection, in response to the Claimant's July 19, 2011 supplement to correct the record of argument at the June 22, 2011 hearing.

To view the full version of the Respondent's letter, please click here.

Council issues their Decision and grants Summary Judgment in favor of Roxbury Township.  On August 19, 2011, via conference call, the Council decided to grant Summary Judgment in favor of Claimant, Roxbury Township on their first claim dealing with the Refuse Container Ordinance Requirement and find that to be an unfunded mandate.  In regards to the Private Catch Basin Retrofitting claim, that is not an unfunded mandate.  All parties were notified by email that this matter was discussed and decided by the Council and the reasons will be set forth in the forthcoming written opinion. 

Council issues their written opinion.  On December 21, 2011, via email, the Council issued their written opinion in the matter of Roxbury Township to all interested parties.

To view the full version of the written opinion, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints.  The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant Township of Roxbury's Summary of Complaint:

"Roxbury Township recently introduced the attached Ordinance as required by the NJAC 7:14A-15.15 Tier A Municipal Storm-Water General Permit NJ0141852.  This ordinance requires that all Municipalities ensure compliance with the recent storm-water regulation.  in order to comply with this unfunded NJDEP regulation, the Township is mandated to act as the enforcement agent to ensure that all outdoor dumpsters and other refuse containers exposed to storm-water are covered at all times.  This mandate will require numerous hours of work from Township employees.  This unfunded mandate exposes the Township to additional expenditures without revenues from the State, further aggravating the economic tax burdens on the Tax payers of Roxbury.

The adoption and enforcement of this ordinance is required by the NJDEP and must be reported in the Roxbury Township's Annual Storm-Water Report which is submitted to the State.  Failure to adopt the said Ordinance will subject the Township to extensive fines.

The Mayor and Township Council requests your immediate review and response to this inquiry."

The above summary is a quotation from the Complaint filed by Christopher Raths, Township Manager, on behalf of the Township of Roxbury, on September 30, 2010.

Respondent Commissioner of Environmental Protection's Summary of Answer and Motion to Dismiss the Complaint:

"The Complaint should be dismissed for failure to state a claim upon which relief can be granted because it alleges that N.J.A.C. 7:14A-15.15 is the unfunded mandate.  However, N.J.A.C. 7:14A-15.15 does not prescribe anything: it is a rule of procedure concerning water discharge permits.  Moreover, dismissal is appropriate because the Department's Tier A permit does not require the permittee to incur expenses it would not otherwise incur in the in the course of its local government operations, or pass an ordinance mandating a particular level of enforceement.  Further, to the extent Roxbury does incur additional costs in enforcing the ordinances, these costs can be offset by methods other than property taxes.  Dismissal is also appropriate because the refuse container ordinance is an existing requirement, and because both ordinances are required under federal law.  Finally, the Complaint is procedurally defective because the municipality's supporting resolution references only the Refuse Container Ordinance, but not N.J.A.C. 7:14A-15.15 or the Private Catch Basin Retrofitting Ordinance.  Therefore, this matter is not properly before the Council, and the complaint should be dismissed."

The above summary is a quotation from the letters accompanying the Answer and Motion to Dismiss the Complaints filed by Jane Engel, Deputy Attorney General, on behalf of the Commissioner of Environmental Protection, on November 23, 2010.

New Jersey State League of Municipalities' summary of Request to Appear:

"Specifically, the regulations at issue require municipalities to ensure compliance with stormwater regulations.  Municipalities are required to act as the enforcement agents over private outdoor dumpsters and private catch basins. 

 It is clear that this requirement does not fall under any of the enumerated exceptions to what may be considered a mandate.  Specifically:

•  
  • (1) those which are required to comply with federal laws or rules or to meet eligibility standards for federal entitlements
  • (2) those which are imposed on both government and non-government entities in the same or substantially similar circumstances;
  • (3) those which repeal, revise or ease an existing requirement or mandate or which reapportion the costs of activities between boards of education, counties, and municipalities;
  • (4) those which stem from failure to comply with previously enacted laws or rules or regulations issued pursuant to a law;
  • (5) those which implement the provisions of this Constitution; and
  • (6) laws which are enacted after a public hearing, held after public notice that unfunded mandates will be considered, for which a fiscal analysis is available at the time of the public hearing and which, in addition to complying with all other constitutional requirements with regard to the enactment of laws, are passed by 3/4 affirmative vote of the members of each House of the Legislature.

There is no doubt that numbers 2-6 above are inapplicable in this situation.  As to number 1, The DEP stormwater guidance document provides: "As a result of U.S. Environmental Protection Agency's (USEPA) Phase II rules published in December 1999, the New Jersey Department of Environmental Protection (Department) has developed the Municipal Stormwater Regulation Program."  Thus, there is generally a relationship between federal law and the NJ stormwater management program.

However, requiring towns to adopt "cover the trash" ordinances goes beyond what is mandated by the federal government, and should be considered an unfunded state mandate.  While towns must develop a plan to detect and address non-stormwater discharges, nowhere does the EPA indicate its intention to require towns to ensure that dumpsters on private property are covered.

As indicated by Roxbury in their initial filing, these rules will require additional direct expenditures to have an employee inspect the dumpsters and catch basins.  While it would be possible to enforce the required ordinance with current employees, these employees would be pulled away from other work.  This would necessitate overtime for the employees or hiring a new, part time dumpster and catch basin inspector.

The rules requiring this ordinance go beyond what is required by the federal mandate, and will increase costs for municipalities to comply.  As such, it should be considered an unfunded mandate and nullified."

The above summary is a quotation fromt he Request to Appear filed by Matthew Weng, Staff Attorney, New Jersey State League of Municipalities (NJSLOM), on November 11, 2010.

Claimant Legal Argument in Reply To The State of New Jersey's Motion To Dismiss and Cross-Motion For A Decision In Favor Of The Township: 

LEGAL ARGUMENT

I.  THE RESPONDENT'S REQUEST FOR DISMISSAL FOR FAILURE TO STATE A CLAIM SHOULD BE DENIED AS THE TOWNSHIP HAS SATISFIED THE GENERALLY PLED STANDARD.

The Respondent claims that the Complaint should be dismissed as  N.J.A.C. 7:14A-15.15 does not prescribe anything as it is a Rule of Procedure concerning Water Discharge Permits.  The Complaint filed by the Township of Roxbury references the "Tier A General Permit" itself as the general permit that requires various ordinances to be adopted and enforced by the Township.  The Resolution authorizing the Complaint as required by N.J.S.A. 52:13H-12 prescribes the Township of Roxbury to file a Complaint "with the Council on Local Mandates in response to the NJDEP requirement that all municipalities adopt regulations to insure compliance with recent Stormwater Regulations."

The Council on Local Mandates, in the matter of Complaints Filed by Counties of Morris, Warren, Monmouth and Middlesex, (September 26, 2006) determined it had the authority to consider a policy statement as to an unfunded mandate.  As the Complaint filed in Counties gave sufficient notice of said pleading, Roxbury's filing of the Complaint is placing the Council on notice that it is claiming that the Stormwater Regulations are unfunded mandates.  The NJDEP has not been prejudiced and clearly understands and has responded to the Complaint.  The Respondent understands that the Complaint relates to Stormwater Regulations and has filed a response by virtue of this motion addressing the aspects of the Stormwater Regulations.  Respondent states:

Since Roxbury's Complaint concerns the Tier A General Permit the following discussion will focus on that general permit.  (See Respondent's Brief at page 5)

Dismissal at this time would result in a re-filing of the Complaint by the Township of Roxbury and it would serve no real purpose.

II.  RESPONDENT ALLEGES THAT THE STORMWATER REGULATIONS RELIED UPON BY THE TOWNSHIP OF ROXBURY ARE NOT A MANDATE BECAUSE THEY APPLY EQUALLY TO GOVERNMENTAL AND NON-GOVERNMENTAL ENTITIES.

The Respondent is only focusing on a specific regulation as opposed to the Tier A General Permit which in itself requires "additional direct expenses".   Respondent argues that the regulations apply equally to governmental and non-governmental etities and therefore is not a mandate.  Pursuant to N.J.S.A. 52:13H-3, paragraph B, Exemption indicates that governmental entities cannot enact and enforce ordinances.  The Tier A General Permit does not attempt to require non-governmental entities to adopt said regulations, it requires only governmental entities to adopt stormwater ordinances.  Therefore, the Respondent's argument that N.J.A.C. 7:14A-15.15 is not a mandate fails to address the Tier A General Permit requirements.  For example, the Tier A General  Permit requires:

A Stormwater Program, a Stormwater Pollution Prevention Program, a Municipal Stormwater Control Ordinance, a Pet Waste Ordinance, an Improper Disposal of Waste Ordinance, and a Wildlife Feeding Ordinance.

The Township of Roxbury specifically challenges the Refuse Container Ordinance and the Private Catch Basin Retrofitting Ordinance.  These Ordinances cannot be enacted and enforced by private non-governmental entities and therefore the Respondent's argument that the Complaint should be dismissed based on these grounds should be denied. 

III.  THE ORDINANCE DOES REQUIRE THE EXPENDITURE OF ADDITIONAL DIRECT EXPENDITURES AND THERFORE SHOULD BE CONSIDERED AN UNFUNDED MANDATE.

The Respondent alleges that Roxbury cannot show additional direct expenditures from the implementation of the Ordinance.  The Respondent's argument relates to the challenge by the Township of Roxbury as to the Refuse Container Ordinance.  The Township of Roxbury, in its Complaint, alleges that it will incur additional expenses of approximately $36,000 per year to enforce the Refuse Container Ordinance.  The State responds that it "does not require that Roxbury enforce the Ordinance in a particular manner and does not require that additional personnel be hired."  (See Respondent's Brief, page 12).

The Respondent further claims that once the municipality adopts an Ordinance it has the discretion and flexibility regarding such enforcement.  In other words, it is up to Roxbury if it really wants to enforce the Ordinance.  Under the Tier A General Permit requirements, subsection 8 it states as follows:

Tier A municipalities are required to develop a permit and enforce the Stormwater Program.  The Program shall be designed to reduce the discharge of pollutants from the municipality's small NS4 to the maximum extent practicable to protect water quality...

Refuse Containers/Dumpster Ordinance:  Municipalities shall adopt and enforce an Ordinance requiring dumpsters and other refuse containers that are outdoors or exposed to stormwater to be covered at all times.

Private Storm Drain and Retrofitting Ordinance:  Municipalities shall adopt and enforce an Ordinance requiring the retrofitting of existing storm drain inlets to meet the standard in attachment C of the permit. 

The cost of the adoption of said Ordinance and enforcement of such legislation on the local level is nothing more than the shifting of permitting costs to local governments.  In the matter of Complaints Filed by Counties of Morris, Warren, Monmouth and Middlesex, (October 31, 2006) the Council on Local Mandates found that the Attorney General "essentially asked the Council to rewrite Article VIII, Section 2, ¶5 of the New Jersey Constitution and the Local Mandates to permit costs to be shifted to local governments if the State thinks those burdens are more properly borne by local taxpayers."  The Council held that "this directly contravenes the requirements of the amendment and the Local Mandates Act."  Id. at 6.

In the instant matter, the Township of Roxbury has submitted the estimated costs to enforce this Ordinance and the Respondent, in its moving papers, claims that the Department did not expect municipalities to hire additional staff to enforce these ordinances.  However, that is not the reality of what has occurred.  The Township of Roxbury has provided an estimate that in order to, for example, inspect dumpsters throughout the community, will in fact cost the Township of Roxbury.  The fact that the Township already has a Garbage Ordinance is irrelevant. The Township has the discretion to repeal other Ordinances absent a mandate, however that discretion has now been eliminated.  The regulations in question now require personnel to conduct inspections relevant to the enforcement of the Ordinances in question.  For example, the NJDEP could enforce the Ordinance in question.  However, again, that responsibility by way of the Tier A General Permit has been shifted to local governments with respect to private stormdrain inlets.

IV.  THE RESPONDENT'S ARGUMENT THAT THE REFUSE CONTAINER/DUMPSTER ORDINANCE AND THE PRIVATE STORMDRAIN INLET DOES NOT IMPOSE UNFUNDED MANDATES BECAUSE ENFORCEMENT CAN BE OFFSET BY FEES IS FLAWED.

The Respondent relies upon the Complaint filed by Ocean Township (August 2, 2002) relevant to an amendment to the Municipal Land Use Law.  It was alleged that said amendment was an unfunded mandate because it imposed additional direct expenditures on local officials.  The Council rejected the claimant's argument concluding that the legislation did in fact provide adequate funding to offset costs for the adoption and implementation of A-2403.  However, the Complaint filed by Ocean Township (August 2, 2002) is clearly distinguishable to the matter Roxbury has presently placed before the Local Mandates Council.

In Ocean Township, the authorization to collect permit fees and the amendment to the Municipal Land Use Law was authorized in the same statute.  In the case at bar, the State represents that there are "a number of statutes, including N.J.S.A. 40:48-1, et seq., which could authorize municipalities to assess reasonable fees."  These are existing statutes that do not expressly authorize municipalities such as Roxbury to issue fees for the Ordinances in question.   In Ocean Township, however, the law in question stated that a municipality may establish reasonable fees to cover administrative costs for the issuance of permits, certifications and authorizations.  No where in the legislation for the Tier A municipalities does it specifically state that a municipality may charge said fees for the enforcement of these Ordinances nor does the legislation provide for any funding from the State for municipalities such as Roxbury to adopt and enforce the Refuse Container/Dumpster Ordinance or the Storm Drain Inlet Retrofitting Ordinance. 

It is for these reasons, the State has failed to provide the Township of Roxbury with a specific funding source for these Ordinances. 

V.  RESPONDENT ALLEGES THAT THE CHALLENGE ORDINANCES ARE NOT UNFUNDED MANDATES SINCE THEY ARE REQUIRED TO MEET FEDERAL LAW.  HOWEVER, THIS LACKS ANY TECHNICAL TESTIMONY.

Respondent alleges that the regulations in question are required to comply with Federal Law and therefore are not considered unfunded mandates.  In Special Services  School District (July 26, 2007) the Council set forth that the State must make a record demonstrating with specificity how the challenge mandate is necessary.  Id. at pg. 11.  In the instant matter, the State sets forth various provisions of the Federal Code as it relates to Federal Rules and Regulations.  In addition, the State references various EPA Rules governing the Water Act.  The respondent goes on to state that the Clean Water Act Regulations have a direct relationship to the Ordinances in question.  However, the State has not made a record of same and nor does the Township have an opportunity to challenge such record.  For example, the Township Engineer could review this correlation and question how same impacts the Township of Roxbury.  The respondent has failed to make a technical showing of this correlation and in the context of a Motion to Dismiss, it omits the right of the Township of Roxbury to and this Council to question and decide this technical argument.

VI.  THE REFUSE CONTAINER/DUMPSTER ORDINANCE IS AN UNFUNDED MANDATE IRRELEVANT AS TO WHETHER AN ORDINANCE ALREADY EXISTS IN THE TOWNSHIP'S CODE.

The difference between the existing Township Code and the prior Township Code regarding the Refuse Container/Dumpster Ordinance in a Tier A municipality is that the Township of Roxbury may no longer have the right to repeal or amend its Ordinance.  This Tier A municipality is now mandated to maintain and enforce this Ordinance, whether it already exists in the Township Code is irrelevant.  The fact that the Township may not repeal this Ordinance is the critical determining factor and it demonstrates that this is nothing more than unfunded mandate.

VII.  THE TOWNSHIP OF ROXBURY'S COMPLAINT IS NOT PROCEDURALLY DEFECTIVE.

The Respondent argues that the Complaint filed by the Township of Roxbury is procedurally defective in its last point of its brief.  Again, this was already addressed back in Point I of the Legal Argument.

It is for these reasons that the Township of Roxbury requests that the Motion to Dismiss is denied and the Township of Roxbury's Complaint be granted.

The above is the legal argument in Reply to the State of New Jersey's Motion to Dismiss and the Cross-Motion for a Decision in Favor of the Township filed by Fred Semrau, Esq., on behalf of the Township of Roxbury, on December 15, 2010.

Respondent, New Jersey Department of Environmental Protection's Letter Brief in Opposition to the Cross-Motion by the Township of Roxbury for summary decision:

First, Roxbury has ignored its obligation to place the statute, rule or regulation that it alleges to be an unfunded mandate squarely before this Council. See, Complaint Filed by the Township of Branchburg (August 12, 2010) (Complaint dismissed because claimant failed to identify a statute, rule or regulation as required by the Constitution.) It remains unclear from Roxbury's papers if it is challenging N.J.A.C. 7:14A-15.15, the Refuse Container and Private Catch Basin Retrofitting Ordinances required under the Tier A Municipal Stormwater General Permit, the entire Tier A General Permit, or "the Stormwater Regulations." See, pages 2 and 6 of Roxbury's reply. Roxbury claims that it need not plead with precision because "NJDEP has not been prejudiced" and "understands that the Complaint relates to Stormwater Regulations" (page 2). But Roxbury's failure creates confusion over what it is actually asking this Council to void. If the Department's motion to dismiss is not granted, Roxbury must be compelled to clarify its pleadings.

Second, to the extent Roxbury challenges conditions in the general permit it obtained from the Department, its complaint is improper. Conditions in a pollution control permit issued by the State to a municipality cannot be considered an unfunded mandate. Under the plain language of the New Jersey Constitution, N.J. Const. art. VIII, § 2, ¶5, and N.J.S.A. 52:13H-1 et seq., the Council's jurisdiction extends only to a review of statutes, rules or regulations.

A permit is not a rule, and permitting decisions are not interchangeable with agency rulemaking. A permit is an agency document issued to an applicant under certain procedural requirements giving permission, license or approval. Under the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., ("APA") a "permit decision" is defined as a decision by an agency regarding any "agency license, permit, certificate, approval, chapter, registration or other form of permission required by law."  N.J.S.A. 52:14B-3.2. A "rule" is defined separately under the APA as an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency." N.J.S.A. 52:14B-2. A "rule" does not include "agency decisions and findings in contested cases." Ibid. Pursuant to the Water Pollution Control Act, N.J.S.A. 58:10A-1, et ~ ("WPCA"), a determination to grant, deny or modify a permit, or permit conditions, such as the conditions in the Tier A permit issued under the WPCA, is a "contested case" under the APA.  N.J.S.A. 58:10A-7(d). Thus, under the APA, Roxbury's challenge to the Tier A permit conditions cannot be considered a challenge to a rule, regulation or statute.

Roxbury contends that because the Council had jurisdiction to review a change in a long-standing informal policy as to the State's practice of removing dead deer from county and local roads in Complaints filed by the Counties of Morris, Warren, Monmouth and Middlesex (October 31, 2006), the language restricting the Council's jurisdiction to "statutes, rules and regulations" should not prohibit the Council from reviewing the general permit conditions at issue here. However, the informal policy at issue in the County of Morris case was akin to rulemaking, and the extension of the Council's jurisdiction to review a change in that policy is consistent with the Constitution and the Local Mandates Law. See, Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 341 (1984) (A relevant factor in deciding if an agency determination is a rule is whether the action constitutes "a material and significant change from a clear, past agency position on the identical subject matter"). The Council's finding in Morris should not be extended to cover all aspects of agency action, as Roxbury suggests. Such a reading is not supported by the Constitution or the Act, and would make the language limiting the Council's jurisdiction to "statutes, rules and regulations" meaningless.

Moreover, if the Council concludes that its jurisdiction extends to permitting actions by state agencies, that finding would allow Roxbury (and all other municipalities aggrieved by a condition in a permit issued to them by the State) to bypass the formal and well-established administrative and judicial process to challenge permitting or other final decisions of administrative agencies. Such an approach would inundate the Council with complaints, and force it to review detailed technical data in challenges to policy determinations of the administrative agency.  Importantly, if Roxbury finds the conditions in the Tier A General Permit to be too burdensome, it has the ability to challenge those conditions through a public process, or it may seek an individual permit from the Department.   N.J.A.C. 7:14A-6.13(g), -15, -25.5(a), -25.9. Roxbury should not be allowed to challenge its permit in this forum. ¹

Third, the requirement that Roxbury be permitted to control stormwater pollution within its municipal boundaries is a federal requirement, and Roxbury's arguments that the ordinances in question are not federally required must be rejected.

In the Department's Motion to Dismiss, the Department detailed the inter-relationship between the federal and state stormwater control programs, and the relevance of the challenged ordinances within the regulatory process. See, Point IV of the Department's brief. As the agency explained, the Federal Clean Water Act, 33 U.S.C. 1251 et seq. ("CWA"), requires that the operator of Municipal Separate Storm Sewer System ("MS4") be issued a permit by the State that includes "management practices" and "control technologies" the "State determines appropriate for the control of pollutants." 33 U.S.C. 1342 (p) (3) (B) (iii). The federal rules further require that the operator of an MS4 system must develop, implement and enforce a program to detect and eliminate illicit dischargers, and that this program must "effectively prohibit, through ordinance or other regulatory mechanism" non-stormwater discharges into the storm sewer.  40 C.F.R. 122.34(b) (3) (ii) (B)  (emphasis added).

¹Indeed, part of the State's federal delegation of the NJPDES Program requires that challenges to permits proceed pursuant to a prescribed process. 40 C.F.R. 123. To allow Roxbury to challenge its permit conditions here would jeopardize the State's federal delegation.

Consistent with these federal requirements, and relying on its expertise and the recommendations of the State's Municipal Stormwater Advisory Group, the Department developed Best Management Practices ("BMPs") for stormwater control and incorporated these BMPs into the Tier A MS4 permit. These BMPs included the requirement that municipalities enact and enforce ordinances requiring that dumpsters be covered, and that private parties retrofit private storm drain inlets when repaving a parking lot.

Roxbury contends that the Department has not made a record of how the federal rules have a direct relationship to the ordinances in question, and argues that the Township and the Council must have an opportunity to probe and challenge the Department's record. See Point V of Roxbury's reply. Roxbury is wrong.

Unlike the case In Special Services School Districts (July 26, 2007), where the Department of Education's rule was not essential to maintaining eligibility under the federal program, the federal law at issue here directly references and defers to the State's expertise in developing BMPs, and requires the incorporation of those BMPs into state permits. The Department's regulatory and permitting record in this matter is extensive, and was cited by the Department in its moving papers. This record describes the correlation of the ordinances as BMPs under the federal mandate, and cites the technical bases for requiring the BMPs. Roxbury has had ample opportunity to review the technical bases, and comment on the record through the permitting process established under the APA and the WPCA.

Moreover, Roxbury's assertion that it is the "right" of this Council to question and decide the Department's technical argument is without merit. Any such questioning would force the Council to determine if closing refuse containers or retrofitting private storm drain inlets are BMPs under the CWA and WPCA. This inquiry will inevitably enmesh the Council in matters of technical, professional judgment that are not its primary concern, and beyond its jurisdiction. See, Special Services, p. 21-22. Roxbury seeks to bypass the NJPDES process to seek more favorable permit conditions from the Council. Roxbury's approach should not be countenanced.

Finally, Roxbury's motion for summary decision must be rejected as Roxbury has failed to provide specific facts to demonstrate the imposition of additional direct expenditures because of Tier A permit. Complaints Filed by Highland Park Board of Ed. ("Highland park II") (May 11, 2000) p. 14 - 15 (It is the claimant's burden to prove the existence of an unfunded mandate in the form of additional direct expenditures.) All Roxbury has offered is the statement that "the reality of what has occurred" is that Roxbury expects to hire additional staff to conduct inspections. Roxbury's argument is speculative, and if the Department's motion is not granted Roxbury must be required to demonstrate, through a detailed accounting, the basis for its alleged new direct expenditures. This accounting must address the following, at a minimum:

0.  
   0. How the Township arrived at its estimate for enforcing the Refuse Container and Private Storm Drain Inlet Retrofitting Ordinances.
   0. What enforcement regime Roxbury has used to enforce its existing garbage ordinance with respect to nonhomeowners trash receptacles, and why and to what degree does the Tier A Refuse Container Ordinance imposes additional costs.

Further, Roxbury's contention that its existing garbage ordinance is not relevant to this proceeding must be rejected. See Roxbury's Point III and IV. If Roxbury has existing refuse container requirements, the Tier A ordinance cannot be considered an additional expenditure. Moreover, Roxbury's assertion that it could simply repeal its garbage ordinance is not a sufficient basis to support a finding that the ordinance is an unfunded mandate. In County of Morris the Council rejected the implication that it would be acceptable for deer carcasses to be left to rot on or beside local roadways. The Council should likewise reject the implication that the residents of Roxbury would agree to repeal their garbage ordinance and let owners and occupants of premises deposit garbage and refuse beside roadways and outdoor locations in whatever manner they please.²

As outlined in the State's moving papers, Roxbury has the discretion and flexibility as to the manner in which the Refuse Container and Private Catch Basin Retrofitting Ordinances are to be enforced. If additional costs are incurred, these costs can be offset by fees or penalties: they do not have to be funded through property taxes.

N.J.A.C. 7:14A-15.15 is not an unfunded mandate. The Tier A General Permit conditions that require the Refuse Container and Private Storm Drain Inlet Retrofitting Ordinances are not unfunded mandates. For the reasons set forth in the State's moving papers and in this letter brief, Roxbury's complaint should be dismissed, and its motion denied.

²Notably, the requirement that municipalities ensure the proper pre-collection handling of garbage and refuse have existed for many years under public health laws and rules. See, N.J.A.C. 8:52.

The above is the letter brief in Opposition to the Cross-Motion by the Township of Roxbury for summary decision filed by Jane Engel, Deputy Attorney General, on behalf of the New Jersey Department of Environmental Protection, on January 27, 2011.