Trends in Resolving Your Environmental Disputes with the State of New Jersey

January 22, 2017
John F. Gullace
MGKF Special Alert - Forecast 2017

The New Jersey Department of Environmental Protection (“NJDEP”) wants you to know that there are faster ways to resolve your environmental non-compliance, including some that you will like, and some that you will not.  For instance, NJDEP is experimenting with the issuance of “tickets” and the agency is very pleased with the results.  Currently, “tickets” are being issued primarily for failure to comply with mandatory deadlines under the Site Remediation Reform Act (SRRA), for example, failure to timely retain an LSRP.  The benefit to the state of this ticketing process is speed.  Instead of plodding through traditional enforcement actions that can take several years, the NJDEP “tickets” are heard in municipal court like speeding tickets and are resolved within a few months.  NJDEP is evaluating whether to expand its use of tickets as an enforcement mechanism. 

NJDEP’s desire to promptly resolve non-compliance is being seen in other ways as well.  NJDEP management is encouraging several alternatives to protracted litigation.  To promptly resolve non-compliance, NJDEP recommends the early negotiation of Administrative Orders on Consent.  NJDEP has also been publicizing its willingness to consider small Special Environmental Projects (“SEPs”) to resolve penalties.  The change here is NJDEP’s willingness to consider SEPs as small as a few thousand dollars and NJDEP’s greater flexibility in evaluating the nexus between the harm and the SEP.  You might be able to resolve an air violation in a community by performing a stormwater project in the same community.  Finally, if you are unable to resolve your dispute with NJDEP’s program personnel, NJDEP is encouraging the regulated community to engage the Office of Alternative Dispute Resolution to help untangle and put to rest its disputes with NJDEP.  We expect this trend favoring quick, flexible resolutions to continue at NJDEP through at least the end of this year since the message is coming from the highest levels at NJDEP and we would not expect a policy shift before a change in administration a year from now.