New Jersey Environmental Law Outline

NEW JERSEY ENVIRONMENTAL LAW – Prof. John McKinney, Spring 2012

CH. 1: Foundations of NJ Environmental Law

I. New Jersey Department of Environmental Protection

a. Overview

i. Powers and Duties

1. NJDEP is an administrative agency of the state of NJ that enforces both state and federal laws.

2. NJDEP has comprehensive rulemaking and enforcement authority. In order to have the power to act, there must be an enabling statute that authorizes the NJDEP to act. The Legislature gives the NJDEP discretion because it doesn’t have time/resources to get into details. These are enumerated in the various environmental statutes.

3. NJDEP has the power to:

a. Propose regulations

i.NJDEP gathers info from citizens, lobbyists, interest groups, etc. and proposes regulations to the NJ Register. After legislative and public comment, the regulations are adopted.

b. Require registration of certain entities.

i.Registration of certain entities engaged in operations which may result in pollution.

ii.May also require entities to file periodic self-monitoring reports.

c. Conduct inspections and investigations.

i.This power is used to ensure compliance with the necessary regulations. This may include compelling production of information that is regarded as confidential.

ii.Doesn’t generally need a warrant. As part of the permit, you agree to let the NJDEP come onto property and inspect. [Right of Entry]

d. Issue permits.

i.A permit is a license to pollute. It is not an unlimited license to pollute, rather it is restricted.

ii.NJDEP authorizes certain levels of pollution. The permit level is limited so as not to impact human health in the environment and, when all the permit holders are looked at in aggregate, do not violate any federal rules (which would mean loss of federal funding).

e. Receive and initiate complaints

i.In pollution allegations, for example, NJDEP can hold hearings and institute legal proceedings seeking both legal and equitable relief.

f. Supervise planning and construction

i.Under the Department of Environmental Protection Act, NJDEP has power to supervise planning, construction, and pre-approval of plans for certain projects and operations.

ii. Role of Attorney General

1. While NJDEP has been granted comprehensive powers, its direct access to administrative and judicial tribunals is limited.

2. NJDEP may be represented only by the Attorney General or his deputies.

3. Attorney General is the only entity that can give legal advice or render legal services to the state of New Jersey.

a. Exception: In administrative functions, including hearing of issues and determining facts so that the NJDEP may perform its function as required by law.

iii. Administrative Procedure

1. Administrative Procedure Act (APA) establishes the procedural and substantive requirements that NJDEP must adhere to in its formal rulemaking and administrative enforcement proceedings.

2. If requirements of APA and NJDEP procedural or substantive requirements conflict, APA requirements preempt.

3. NJDEP has adopted procedural regulations under each of the three major statutory programs: (1) NJ Water Pollution Control Act, (2) Solid Waste Management Act, and (3) Air Pollution Control Act.

a. These regulations provide a right to an adjudicatory hearing, before an administrative judge, when the NJDEP seeks to impose civil administrative penalties.

b. Administrative Orders commonly contain provisions which required alleged violator to either (1) come into immediate compliance, or (2) take other affirmative actions.

c. Alleged violators have 20 days from receipt of an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) to submit a hearing request.

i.The AONOCAPA will say you have the right to contest the order and assessment (20 days for all Air and Water programs).

ii.The AONOCAPA is not appealable after the final order of 20 days.

d. Requires an agency to provide for a public comment period prior to regulations being promulgated and “react” to those comments through reading and considering those comments

iv. Civil Enforcement and Penalties

1. In general, when the Department, acting through the Commissioner, determines that a person has violated any provision of the NJ environmental statutes or any of the rules and regulations adopted pursuant to the statutes, it has four alternatives for civil enforcement:

a. Issue an administrative order requiring violator to come in compliance

i.Step 1: NJDEP will issue a notice of violation (NOV) (but does not trigger an administrative process)

ii.AONOCAPA – Administrative Order and Notice of Civil Administrative Penalty Assessment.

iii.The most common enforcement mechanism.

b. Bring a civil action in Superior Court for both equitable and legal relief including injunction and costs associated with investigation, litigation, remediation and damages.

c. Levy a civil administrative penalty ranging from $10,000 to $50,000 per violation

d. Bring an action in Superior Court or in municipal court for imposition of a civil penalty

2. Factors for Assessing Penalty (p. 13)

a. The basis of the seriousness of the violation

b. The conduct of the violator

c. Note however that there are minimum mandatory to certain violations

d. Submitting inaccurate or false information, failure to allow entry/inspection (p. 14)

3. Within 30 days of failure to pay or failure to appeal interest accrues on unpaid amount.

v. Preemption of County and Local Initiatives

1. Complete NJ State takeover preempting local regulation is generally achieved by specific statutory language. Absent such language, the courts will not presume that local authorities lack regulatory authority.

2. In general, preemption will depend on specific of the statute (express) and secondarily on the comprehensiveness with which the State statutory scheme has occupied the field.

vi. Local Enforcement Role

1. The Legislature has authorized county departments of health to administer environmental health services in accordance with performance standards issued by the NJDEP.

2. The Legislature, in 1968, provided by statute that the governing body of any municipality may establish, by ordinance, an environmental commission for the protection, development, and use of the natural resources located within the municipal boundaries.

b. Criminal Prosecution

i. General

1. For ANY violations of the Environmental Statutes the Govt. can do 4 things:

a. Seek civil order or civil penalties (or both) in court or adminstratively

b. Seek criminal penalties

ii. Criminal Liability for Violations of Environmental Law

1. All major acts (CWA, Solid Waste Mgmt. Act, Air Pollution control Act, Water Pollution control Act) contain criminal liability provisions.

a. These provisions are enforceable by the Attorney General

b. Some of the provisions provide for Strict Liability.

2. Penalties include fines of up to $1 million and up to 20 years in prison.

3. Legislature is willing to impose more stringent penalties now than in the past.

a. Ex: Clean Water Act (CWA) provides that a purposeful or knowing violation of an effluent limitation or a permit condition is a first degree crime if violator knows that violation puts another person in imminent danger of death or serious bodily harm.

i.In addition, act provides for a supplemental fine up to $250,000 for individuals and $1 million for corporations.

iii. Criminal Code

1. NJ criminal code provides for criminal penalties for other acts detrimental to the environment.

a. Ex: Purposeful / knowing release or abandonment of “hazardous wastes” or other destructive substances (2nd degree / 10 yrs)

2. AG or the County Prosecutors can prosecute these violations.

a. MAJOR criminal prosecutions of Environmental Matters are handled by the EP task force under the AG’s supervision.

c. Other Agencies – [Additional Regulatory entities w/ jurisdiction over environmental matters]

i. Delaware River Basin Commission

1. [Arose from an Interstate Compact between NY/NJ/DE]

2. Compact entered into for the purpose of coordinating the c