A2584

An Act concerning administrative violations of certain permit application procedures, and amending P.L.1991, c.422 and P.L.1995, c.296.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1991, c.422 (C.13:1D-111) is amended to read as follows:

1. a. Within 12 months of the effective date of this section, the Department of Environmental Protection shall develop a technical manual for each class or category of permit, as established pursuant to section 1 of P.L.1991, c.423 (C.13:1D-105), issued by the department. Each manual shall define the procedural and substantive requirements for the completion of an application for a class or category of permit and the review thereof, and shall clarify departmental policies and interpretations of any laws, rules, and regulations relating to the filing and review of the application. Each technical manual shall also:

[a.] (1) Provide a detailed summary and explanation of any policy considerations not otherwise identified by law, rule, or regulation that are used in the department's review and consideration of the permit application;

[b.] (2) Detail and clarify the department's interpretation of any standards or other requirements that do not have a fixed meaning or are not defined by law, rule, or regulation, including, but not limited to, identification or stipulation of state-of-the-art control technologies and best management practices; [and]

[c.] (3) Include any other general information about department policies that would facilitate the preparation by an applicant, and the review by the department, of an application.

[d.] b. Adoption of a technical manual, or of revisions thereto, shall [not] be subject to the notice and publication requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

c. As used in this act:

"Permit" shall have the same meaning as in section 1 of P.L.1991,c.421 (C.13:1D-101).

(cf: P.L.1991, c.422, s.1)

2. Section 5 of P.L.1995, c.296 (C.13:1D-129) is amended to read as follows:

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 any of the categories described in paragraph (1), (2), or (3) of this subsection is applicable to the violation :

(1) (a) The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b) The violation is based on an administrative, technical, clerical, or other non-substantive error or omission in a notice, report, manifest, or document; and

(2) (a) The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b) The violation poses [minimal] no risk to the public health, safety and natural resources;

[(3)] (c) The violation does not materially [and] or substantially undermine or impair the goals of the regulatory program;

[(4)] (d) 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)] (e) (i) 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)] (ii) 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)] (iii) 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)] (iv) 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)] (f) 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) ; or

(3) The violation has not caused any actual harm to the public health, safety, or environment .

c. [Any] Notwithstanding the provisions of any law, rule, or regulation to the contrary, any violation subject to the mandatory assessment of civil administrative penalties pursuant to subsection b., c., or d. of 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.

(cf: P.L.1995, c.296, s.5)

3. Section 6 of P.L.1995, c.296 (C.13:1D-130) is amended to read as follows:

6. Whenever a person responsible for a minor violation designated as such pursuant to section 5 of [this act] P.L.1995, c.296 (C.13:1D-129) 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 or 5 of [this act] P.L.1995, c. 296 (C.13:1D-127 or C.13:1D-129).

(cf: P.L.1995, c.296, s.6)

4. This act shall take effect immediately and shall be applicable to violations that are pending on, or committed after, the effective date of this act.

STATEMENT

This bill would require the Department of Environmental Protection (DEP) to authorize the correction of minor technical and administrative violations of DEP permitting rules. The bill would also establish a new class of minor DEP permitting violations, based on satisfaction of the following conditions:

(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 is based on an administrative, technical, clerical, or other non-substantive error or omission in a notice, report, manifest, or document; and

(3) the activity or condition constituting the violation is capable of being corrected and compliance achieved within 45 days.

The bill would also require the DEP to treat as a minor violation any violation that has not caused actual harm to the public health, safety, or environment.

This bill is consistent with existing State law, which currently requires the DEP to allow for the correction of occasional, unintended, and non-negligent violations of permitting rules and procedures by a permittee or permit applicant, so long as those violations do not materially or substantially undermine or impair the goals of the associated regulatory program, have existed for less than 12 months, and are easily corrected. The bill would merely clarify that this courtesy of minor error correction should be extended whenever a permittee or permit applicant makes an unintended, and easily-correctible, technical or typographical error or omission in a permit application.

In addition to the creation of two entirely new classes of minor violations, the bill would craft a third category of minor violations, which category would incorporate the current law’s pre-existing conditions for a minor violation. The bill would further clarify that an action or omission would only constitute a minor violation pursuant to these existing provisions of law if it poses no risk (rather than minimal risk) to public health, safety, or natural resources.

Finally, the bill would amend the existing law in this area to provide that the department must comply with the provisions of the “Administrative Procedure Act” in adopting a technical manual that outlines permit application and review procedures.