november 2004

NJDEP regulations implementing the 1995 “Grace Period” Law for “minor violations” of Environmental Laws are expected soon in the wake of a recent Superior Court Appellate Division decision in NJDEP vs. Marisol Inc. This decision should lead to significantly reduced penalties for many violations

BACKGROUND

In 1995 the Legislature enacted the Grace Period Law whereby a broad range of “minor violations” of various environmental laws which can be corrected within a specified time cannot result in a penalty assessment. The legislature also directed NJDEP to promulgate regulations defining what violations under NJDEP’s multiple regulatory programs would qualify as “minor” under the Grace Period Law. The NJDEP never did so.

In the 2004 Marisol decision the Court reversed the findings of both an Administrative Law Judge and the NJDEP Commissioner, ruling that the Grace Period Law should apply to many violations of environmental law which NJDEP had not previously considered minor. In the Marisol matter $9,000 in penalties were eliminated.

NJDEP has now finally presented draft Grace Period regulations for discussion in informal workshops, but they have not yet been formally proposed for adoption. In the interim, the Grace Period Law allows NJDEP to apply its provisions on a case by case basis.

WE RECOMMEND

Everyone subject to NJDEP regulation and enforcement should be alert for the upcoming rule with the list of violations to which the Grace Period Law will apply. In the meantime, if and when any violations of environmental law are alleged, consult with your legal advisor to determine if the alleged violation(s) can be successfully challenged with the Grace Period arguments accepted by the courts.

If you have any questions concerning the application of the Grace Period Law, please contact Richard J. Ericsson.