USA – NEW JERSEY Law and Practice Contributed by: Nicole Dory, Christina Sartorio Ku, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
the government’s oversight of an environmental issue is insufficient.
prior to application submission, to clarify require- ments. Permits issued by NJDEP impose enforcea- ble conditions, including recordkeeping and reporting obligations. Adverse permitting decisions or challenges to permit conditions may be challenged through an adjudicative hearing before the Office of Administrative Law, to the NJDEP Commissioner and the Appellate Division of the Superior Court. 4.3 Regulators’ Approach to Policy and Enforcement NJDEP’s environmental policy prioritises protection of public health, natural resources and historically over- burdened communities. NJDEP increasingly address- es environmental justice considerations in its permit and enforcement decisions. Its enforcement philosophy emphasises compliance and encourages co-operation, transparency, and prompt corrective action if there is a violation. NJDEP encourages self-reporting of violations and has pro- cedures in place that allow responsible parties to vol- untarily remediate contaminated property. Enforcement actions are typically proportionate to the type and severity of the violation, which can range from warnings and consent agreements to administra- tive penalties and/or civil or criminal litigation. Prompt disclosure, corrective action and engagement with NJDEP may mitigate potential penalties and facilitate resolution and compliance. While the OAG prosecutes more significant environ- mental enforcement cases for the NJDEP, the NJDEP also co-ordinates with the EPA to align states’ enforce- ment actions with federal enforcement requirements and policies. 4.4 Transferring Permits/Approvals In New Jersey, environmental permits and approv- als are generally assignable and transferable. Most permits require the incoming owner or operator to notify NJDEP and accept all permit obligations and conditions. Some permits, such as NJPDES waste- water discharge, air-emission and hazardous waste/ RCRA permits, require NJDEP’s prior written approval
4. Environmental Incidents and Permits 4.1 Investigative and Access Powers The NJDEP has broad authority to investigate environ- mental incidents and enforce compliance with state and federally delegated programmes. Under New Jersey’s Spill Compensation and Control Act (Spill Act), Water Pollution Control Act, and Air Pollution Control Act, during both scheduled inspections and incident-specific investigations involving discharges, emissions, or other suspected violations, NJDEP inspectors may access facilities, examine records, collect samples, and interview personnel. NJDEP may issue Notices of Violation, Administrative Orders, or Directives in response to suspected violations, which require the alleged violator to respond and report or take corrective action. NJDEP often co-ordinates with the OAG and, where applicable, the EPA. Regulated entities should fully co-operate, provide access, and respond with requested information. Otherwise, viola- tors may be charged with obstructing investigations, and/or may be subject to penalties or enforcement actions. 4.2 Environmental Permits/Approvals Environmental permits and approvals are generally required for an activity that may discharge or emit pol- lutants, or disturb regulated areas or waters. NJDEP administers almost all environmental permitting pro- grammes in the state, including those that are federally delegated. The environmental permitting programmes include the NJPDES under the CWA for surface water, stormwater, and groundwater discharges; air-quality permitting for emission sources regulated by the CAA; and hazardous waste-management permits under the RCRA. NJDEP also oversees wetlands and flood haz- ard approvals, as well as site-remediation permits and approvals under the SRRA. Environmental permits are obtained after the submis- sion of applications that comply with requirements in the governing regulations, which typically include detailed technical and environmental analyses. Appli- cants are also encouraged to engage NJDEP early,
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