13:1D-124 - Rules, regulations
13:1D-124. Rules, regulations
5. The commissioner, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations setting forth the payment schedule required pursuant to section 3 of this act, and any other rules and regulations as are necessary to implement the provisions of this act.
L.1993,c.361,s.5.
13:1D-125.Findings, declarations relative to enforcement of environmental laws1. The Legislature finds and declares that:
The Department of Environmental Protection has historically measured the success of its enforcement programs based upon the magnitude of penalties imposed, correlating higher penalties with greater success, and that this paradigm is predicated upon the belief that the threat or imposition of monetary sanctions is the sole economic incentive inducing compliance and the dominant force driving corporate compliance decisions and investments.
The economic dynamics of pollution control and waste management have substantially changed since the inception of environmental regulatory and enforcement programs; that considerable market forces now exist which substantially influence the economics of compliance; that the threat or imposition of monetary sanctions is no longer the dominant force driving corporate compliance decisions and investments; and that the enforcement programs administered by the Department of Environmental Protection should recognize these changes in the factors which influence compliance.
There are equally effective alternative methods to promote compliance with environmental laws, such as establishing grace (compliance) periods, which are especially well-suited for minor violations that have minimal, if any, effect upon public health, safety or natural resources, and that the Department of Environmental Protection affords grace (compliance) periods in certain regulatory programs for minor violations of environmental laws, but this policy is not consistently applied throughout all regulatory programs.
Expanding the use of grace (compliance) periods will promote compliance by allowing those members of the regulated community who are committed to working diligently and cooperatively toward compliance, to invest private capital in pollution control equipment and other measures which will yield long-term environmental benefits, instead of in costly litigation and the payment of punitive monetary sanctions.
Establishing a policy for the consistent application of grace (compliance) periods for minor violations is a proper exercise of the Department of Environmental Protection's enforcement discretion and will enable the Department of Environmental Protection to more sharply focus limited public resources on serious violations of environmental law.
Establishing and employing grace (compliance) periods for minor violations will ensure the administration of an effective, consistent, sensible and fair enforcement program by the Department of Environmental Protection, and promote the health and safety of the public and the protection of natural resources.
Persons responsible for minor violations of environmental laws should be afforded a grace (compliance) period, and if the person responsible for the violation achieves compliance within the grace period, the Department of Environmental Protection should refrain from imposing penalties.
The economic dynamics of compliance, in combination with an evolving environmentally-sensitive corporate ethic, have resulted in the initiation of environmental audits by regulated entities and the consequent discovery of violations of environmental laws.
Environmental enforcement policies should promote and encourage the initiation of environmental audits, the diligent remediation of violations so discovered and the immediate and voluntary disclosure of such violations to the Department of Environmental Protection.
The Department of Environmental Protection should refrain from imposing monetary sanctions for violations immediately and voluntarily disclosed, provided certain conditions are met.
L.1995,c.296,s.1.
13:1D-126.Definitions
2. As used in this act:
"Department" means the Department of Environmental Protection.
"Environmental law" means the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.); the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.); the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et seq.); the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.); the "Worker and Community Right To Know Act," P.L.1983, c.315 (C.34:5A-1 et al.); the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et seq.); P.L.1986, c.102 (C.58:10A-21 et seq.); the "Pollution Prevention Act," P.L.1991, c.235 (C.13:1D-35 et seq.); the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.); the "Noise Control Act of 1971," P.L.1971, c.418 (C.13:1G-1 et seq.); the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.); the "Radiation Protection Act," P.L.1958, c.116 (C.26:2D-1 et seq.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); R.S.12:5-1 et seq.; the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.); any rule or regulation promulgated thereunder; and any permit issued pursuant thereto. It shall also include any ordinance adopted by a local government agency to implement or effectuate the purposes or objectives of an environmental law.
"Facility" means the building, equipment and contiguous area at a single location used for the conduct of business, and which is regulated pursuant to an environmental law.
"Local government agency" means a political subdivision of the State or any instrumentality thereof, including, but not limited to, a municipality, county, local board of health, county board of health, regional health commission, improvement authority, utility authority or sewerage authority authorized by law to enforce an environmental law or adopt ordinances implementing or effectuating the purposes or objectives of an environmental law.
"Minor violation" means any violation which the department, pursuant to section 5 of this act, has designated as a minor violation.
"Penalty" means a civil penalty imposed or civil administrative penalty assessed for a violation of any environmental law or any rule or regulation adopted pursuant thereto or any permit issued thereunder.
"Person" means any individual, corporation, company, partnership, firm, association, political subdivision of this State or any State or interstate agency.
L.1995,c.296,s.2.
13:1D-127.Minor violations
3. a. Upon identification of a violation of an environmental law which, pursuant to section 5 of this act, is designated as a minor violation, the department or a local government agency, as the case may be, shall issue an order, notice of violation, or other enforcement document to the person responsible for the minor violation which: (1) identifies the condition or activity that constitutes the violation and the specific statute, rule or regulation, or permit condition violated; and (2) notifies the person responsible for the violation that a penalty may be imposed unless the activity or condition constituting the minor violation is corrected and compliance is achieved within the period of time specified in the order, notice of violation, or other enforcement document, as the case may be.
b. In each order, notice of violation, or other enforcement document issued pursuant to subsection a. of this section, the department or local government agency, as the case may be, shall provide the person responsible for the minor violation a period of time to correct that violation and achieve compliance. The department shall promulgate rules and regulations establishing the period of time within which each type or category of minor violation shall be corrected and compliance achieved. The periods of time established for correction and compliance pursuant to this subsection shall be no less than 30 days or more than 90 days, based upon the nature and extent of the minor violation and a reasonable estimate of the time necessary to achieve compliance; provided, however, the department may establish a special type or category of minor violation which for public health and safety reasons shall be corrected and compliance achieved in a period of less than 30 days. The department or local government agency, as the case may be, may extend for an additional period of time not to exceed 90 days, in its discretion, the period of time set forth in the order, notice of violation, or other enforcement document within which the minor violation is to be corrected and compliance achieved. If compliance is not achieved during that period due to a lack of required action by the department or a local government agency, then the compliance period shall be tolled until the department or local government agency takes such required action.
c. If a person responsible for a minor violation corrects that violation and achieves compliance within the period of time specified in the order, notice of violation, or other enforcement document issued pursuant to subsection a. of this section, the department or the local government agency, as the case may be, shall not impose a penalty for that violation. The department or local government agency, as the case may be, may require the person responsible for correcting a minor violation or achieving compliance to submit a written certification, or other documentation, to verify that compliance has been achieved.
d. Nothing in this act shall be construed to limit the authority of the department or a local government agency to seek damages or injunctive relief, to initiate or proceed with a criminal investigation or prosecution, or to obtain any other appropriate relief that may be available.
L.1995,c.296,s.3.
13:1D-128.Failure to correct violation4. If the person responsible for the minor violation fails to correct or achieve compliance within the period of time specified in the order, notice of violation, or other enforcement document, the department or local government agency, as the case may be, may impose at its discretion a penalty which is retroactive to the date on which the order, notice of violation, or other enforcement document was first issued to the person responsible.
L.1995,c.296,s.4.
13:1D-129.Rules, regulations; violation designation
5. a. The department shall promulgate rules and regulations designating specific types or categories of violations within each regulatory and enforcement program of each environmental law as minor violations and non-minor violations. In designating minor violations, the department shall utilize the criteria set forth in this section. All types or categories of violations not designated as minor violations shall be designated as non-minor violations.
b. A violation shall be designated by the department as a minor violation if:
(1) The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;
(2) The violation poses minimal risk to the public health, safety and natural resources;
(3) The violation does not materially and substantially undermine or impair the goals of the regulatory program;
(4) The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the department or local government agency;
(5) (a) The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;
(b) in the case of a violation that does not involve a permit, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;
(c) in the case of a violation of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); R.S.12:5-1 et seq.; the "Flood Hazard Area Control Act,"P.L.1962, c.19 (C.58:16A-50 et seq.) or any rule or regulation promulgated thereunder, or permit issued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same site or any other site within the preceding 12-month period; or
(d) in the case of any violation, the person responsible for the violation has not been identified by the department or a local government agency as responsible for the same or substantially similar violations at any time that reasonably indicate a pattern of illegal conduct and not isolated incidents on the part of the person responsible; and
(6) The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department pursuant to subsection b. of section 3 of P.L.1995, c.296 (C.13:1D-127).
c. Any violation subject to the mandatory assessment of civil administrative penalties pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1) shall not be designated as a minor violation pursuant to this act.
L.1995,c.296,s.5.
13:1D-130.Voluntary disclosure; nonimposition of penalty
6. Whenever a person responsible for a minor violation designated as such pursuant to section 5 of this act of an environmental law voluntarily discloses to the department or local government agency the existence of that violation, the department or local government agency, as the case may be, shall not impose a civil or civil administrative penalty for the violation; provided the person responsible for the violation fully discloses all relevant circumstances surrounding the violation within 30 days of its discovery, immediately ceases any continuation of the violation, and promptly remedies the violation and achieves compliance, in accordance with the timeframes established pursuant to section 3 of this act.
L.1995,c.296,s.6.
13:1D-131.Violation procedures prior to adopted rules, regulations7. Prior to the adoption of the rules and regulations prescribed in subsection a. of section 5 of P.L.1995, c.296 (C.13:1D-129), the department or a local governmental agency, upon the identification of a violation of an environmental law and upon a case-by-case basis, may utilize the criteria set forth in section 5 of P.L.1995, c.296 (C.13:1D-129) to designate that violation as a minor violation and determine that the person responsible for that minor violation is eligible for the relief available under this act. In any such case, the department or local government agency, as the case may be, shall specify the time period which shall not exceed 180 days within which the responsible person shall correct the violation and achieve compliance. If compliance is achieved within that specified period, the department or local government agency shall not impose a penalty for the violation. If compliance is not achieved during that period due to a lack of required action by the department or a local government agency, then the compliance period shall be tolled until the department or local government agency takes such required action.
L.1995,c.296,s.7.
13:1D-132.Report, contents; recommendations
8. The department shall annually submit to the Governor and the Legislature a report that provides the following information on each regulatory and enforcement program administered pursuant to an environmental law:
a. The number of facilities regulated;
b. The number of inspections performed;
c. The number of minor violations identified, and the number of facilities responsible therefor;
d. The number of minor violations corrected during a grace period, and the number of facilities responsible therefor;
e. The number of minor violations not corrected during a grace period, and the number of facilities responsible therefor;
f. The number of enforcement actions assessing a penalty initiated for one or more minor violations not corrected during a grace period;
g. The number of non-minor violations identified, and the number of facilities responsible therefor; and
h. The number of enforcement actions assessing a penalty initiated for one or more non-minor violations.
Along with the report, the department may submit any recommendations it may have for any legislation it determines is necessary.
L.1995,c.296,s.8.
13:1D-133.Rules, regulations; submission to Legislature
9. Within 180 days of the effective date of this act, the department, in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate rules and regulations to effectuate the purposes of this act. Not less than 60 days prior to the proposed adoption of any rules or regulations proposed by the department pursuant to this act, the department shall submit such proposed rules and regulations to the chairperson of the Senate Legislative Oversight Committee, or its successor, and the chairperson of the Assembly Regulatory Oversight Committee, or its successor. The department shall provide for a comment period of no less than 60 days prior to the adoption of the proposed rules or regulations, during which at least one public hearing shall be held for the purpose of obtaining comments on the proposed rules or regulations.
L.1995,c.296,s.9.