New Jersey Administrative Code, Title 7 — Environmental Protection

Partial collection: 955 complete publisher documents are included. The complete current publisher inventory has not been verified. Dated publisher originals captured 2026-09-12T00:38:03.816Z through 2026-10-01T01:03:29.406Z. Complete available captured bodies and history are included; 23 unavailable, empty, attachment-dependent or rendering-failed documents are separately recorded and retained privately.

Chapter 4 THE NEW JERSEY REGISTER OF HISTORIC PLACES RULES

Subchapter 8 CONSULTATION WITH OTHER DEPARTMENT PROGRAMS AND OTHER NON-FEDERAL GOVERNMENTAL AGENCIES

N.J. Admin. Code Tit. 7, ch. 4, subch. 8, app 1

APPENDIX 1

DOCUMENTARY AND INFORMANT SOURCES

For purposes of N.J.A.C. 7:4-8.4(c)1 i, this appendix sets forth documentary and informant sources to be consulted in the background research component of Phase I archaeological survey.

Informants include individuals with knowledge and/or information regarding the history and/or the prehistory of the area of the undertaking's potential impact, the types of archaeological resources previously identified or anticipated to exist, and the methods and tools appropriate to conduct all aspects of the investigation.

For most locations, a great deal of documentary information is accessible either without cost or for a nominal cost, including, for example, library collections of maps and other documents. Libraries and other repositories such as the New Jersey State Library and the Rutgers Library system possess vast amounts of information regarding New Jersey history.

All sources listed below will not be equally relevant to every archaeological survey. However, basic sources of information are critical to scoping and implementing a valid field testing program, and background research to focus survey efforts is frequently a cost saving measure. Therefore, sources which provide specific information about locations under investigation should be consulted in the background research phase of the investigation, and the information that they provide should be reflected in the field testing strategy and incorporated into the archaeological survey report. Sources include:

I. General sources available for research within the area of the undertaking's potential impact including:

(A) Files and maps at the Historic Preservation Office (HPO) including prior cultural resource and archaeological survey reports, architectural survey reports, and New Jersey and National Register-listed property files;

(B) New Jersey State Museum archaeological site records;

(C) New Jersey Pinelands Commission historic and archaeological site records;

(D) The holdings of the New Jersey State Library including early 20th century Statewide historic and archaeological surveys, detailed historic period maps, and state and county histories;

(E) Individuals knowledgeable about local history and/or prehistory;

(F) Researchers in other relevant fields who have worked in the project locality (including geologists, geographers, folklorists);

(G) University, regional, and local libraries;

(H) County and local historical societies, County Cultural and Heritage Commissions, Certified Local Governments, and municipal Historic Preservation Commissions;

II. Specific source information focusing on prehistory and prehistoric period sites including:

(A) Bulletin of the Archaeological Society of New Jersey;

(B) Regional archaeological surveys;

(C) HPO historic context files for prehistoric periods;

(D) Individuals knowledgeable about local history and/or prehistory, including professional archaeologists with an interest in the region, avocational archaeologists, artifact collectors, inspection of museum and/or privately held artifact collections, and members of the Archaeological Society of New Jersey (ASNJ);

(E) Overviews of the region's natural environment and ecological evolution reconstructed through soil boring data, topographic, geologic, pedologic, hydrologic, environmental and climatic regional surveys;

III. Sources specifically focusing on the historic period and historic period sites including:

(A) Site specific studies and surveys for the area of the undertaking's potential impact and nearby locations;

(B) Regional and local histories and surveys and syntheses of the surveys and histories;

(C) Detailed historic period maps available at the New Jersey State Library, the New Jersey State Archives, and at local and university libraries (including Sanborn and other insurance maps; older USGS and other government maps; land survey maps; county atlases; and New Jersey Department of Transportation (NJDOT) As-Built plans (available at NJDOT Headquarters), aerial photographs on file with the USDA, Natural Resources Conservation Service (formerly the Soil Conservation Service), and the Department's Division of Science and Research;

(D) Members of the Society for Industrial Archaeology Roebling Chapter, Canal Society of New Jersey, and other associations with an interest in New Jersey history and archaeology;

(E) Professional journals which incorporate discussion of New Jersey history and archaeology;

(F) County and local historical societies;

(G) Architectural survey reports on file at the HPO;

(H) Deed and tax records (available from county courthouses and/or New Jersey Bureau of Archives and History);

(I) Wills and probate inventories (available from county courthouses and/or New Jersey Bureau of Archives and History);

(J) Newspapers;

(K) Historic American Buildings Survey (HABS);

(L) Historic American Engineering Record (HAER);

(M) Historic American Landscape Survey (HALS);

(N) Agricultural, industrial and civil Federal and State census records;

(O) City directories;

(P) Photographic collections; and

(Q) Municipal records regarding the initiation of municipal services (for example, for utilities such as water and sewer, and trash collection).

History

• New Rule, R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).

N.J. Admin. Code Tit. 7, ch. 4A RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 4A, Historic Preservation Grant Program, was adopted as R.1989 d.492, effective September 18, 1989. See: 21 New Jersey Register 958(c), 21 New Jersey Register 2958(a). Pursuant to Executive Order No. 66(1978), Chapter 4A, Historic Preservation Grant Program, was readopted as R.1994 d.521, effective September 16, 1994. See: 26 New Jersey Register 3105(a), 26 New Jersey Register 4182(a).
• Pursuant to Reorganization plan No. 004-1998, Chapter 4A, Historic Preservation Grant Program, was recodified as N.J.A.C. 15:30, effective November 10, 1998. See: 30 New Jersey Register 1351(a), 30 New Jersey Register 4225(a).

N.J. Admin. Code Tit. 7, ch. 4B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Pursuant to Reorganization plan No. 004-1998, Chapter 4B, Historic Preservation Revolving Loan Program, was recodified as N.J.A.C. 15:31, effective November 10, 1998. See: 30 New Jersey Register 1351(a), 30 New Jersey Register 4252(a).

N.J. Admin. Code Tit. 7, ch. 4C RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Pursuant to Reorganization plan No. 004-1998, Chapter 4C, Historic Preservation Bond Program, was recodified as N.J.A.C. 15:32, effective November 10, 1998. See: 30 New Jersey Register 1351(a), 30 New Jersey Register 4252(a).

N.J. Admin. Code Tit. 7, ch. 4D RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Pursuant to Reorganization plan No. 004-1998, Chapter 4D, Historic Preservation Grant Program, was recodified as N.J.A.C. 15:33, effective November 10, 1998. See: 30 New Jersey Register 1351(a), 30 New Jersey Register 4252(a).

N.J. Admin. Code Tit. 7, ch. 5B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 5B, Open Lands Management, was recodified from N.J.A.C. 7:2-12by R.1991 d.487, effective 10/7/1991. See: 22 New Jersey Register 2652(a), 23 New Jersey Register 3005(a). Pursuant to Executive Order No. 66(1978), Chapter 5B, Open Lands Management, was readopted as R.1993 d.359, effective 6/24/1993. See: 25 New Jersey Register 1354(a), 25 New Jersey Register 3153(a). Pursuant to Executive Order No. 66(1978), Chapter 5B expired on 6/24/1998.

N.J. Admin. Code Tit. 7, ch. 6 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 6, Boating Regulations, was adopted and became effective prior to 9/1/1969. Pursuant to Executive Order No. 66(1978), Chapter 6 expired on 12/19/1988.
• Chapter 6, Boating Regulations, was adopted as emergency new rules by R.1989 d.244 and d.245, effective 4/12/1989. See: 21 N.J.R. 1157(a); 21 N.J.R. 1157(b). The provisions of R.1989 d.244 and d.245 were readopted as R.1989 d.351 and d.352, effective 6/9/1989. See: 21 N.J.R. 1157(a), 21 N.J.R. 1856(a); 21 N.J.R. 1157(b), 21 N.J.R. 1856(b).
• Chapter 6, Boating Regulations, was repealed by R.1994 d.205, effective 4/18/1984. See: 26 N.J.R. 744(a), 26 N.J.R. 1673(a).
• Chapter 6, Office of Environmental Services Matching Grants Program for Local Environmental Agencies, was originally codified in Title 7 as Chapter 5, Office of Environmental Services Matching Grants Program for Local Environmental Agencies. Chapter 5 was adopted as by R.1990 d.577, effective 11/19/1990. See: 22 N.J.R. 2392(a), 22 N.J.R. 3505(a).
• Pursuant to Executive Order No. 66(1978), Chapter 5, Office of Environmental Services Matching Grants Program for Local Environmental Agencies, was readopted as R.1995 d.646, effective 11/16/1995, and Appendix A, Model Resolution Recommending Approval of Application for Funding Under the OES Matching Grant Program, was repealed by R.1995 d.646, effective 12/18/1995. See: 27 N.J.R. 3264(a), 27 N.J.R. 5014(a).
• Pursuant to Executive Order No. 66(1978), Chapter 5, Office of Environmental Services Matching Grants Program for Local Environmental Agencies, was readopted as R.2000 d.498, effective 11/16/2000, and Chapter 5 was recodified as N.J.A.C. 7:6 by R.2000 d.498, effective 12/18/2000. See: 32 N.J.R. 3520(a), 32 N.J.R. 4446(a).
• Chapter 6, Office of Environmental Services Matching Grants Program for Local Environmental Agencies, was readopted as R.2006 d.215, effective 5/15/2006. See: 37 N.J.R. 4717(a), 38 N.J.R. 2687(b).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 6, Office of Environmental Services Matching Grants Program for Local Environmental Agencies, expired on 5/15/2013. See: 43 N.J.R. 1203(a).

N.J. Admin. Code Tit. 7, ch. 6A RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 6A, Aid for Urban Environmental Concerns Matching Grants Program for Environmental Agencies, was adopted as R.2000 d.498, effective 12/18/2000. See: 32 N.J.R. 3520(a), 32 N.J.R. 4446(a).
• Chapter 6A, Aid for Urban Environmental Concerns Matching Grants Program for Environmental Agencies, was readopted as R.2006 d.215, effective 5/15/2006. See: 37 N.J.R. 4717(a), 38 N.J.R. 2687(b).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 6A, Aid for Urban Environmental Concerns Matching Grants Program for Environmental Agencies, expired on 5/15/2013. See: 43 N.J.R. 1203(a).

Chapter 1 DEPARTMENT ORGANIZATION

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1-1.1 Mission

(a) The Department's mission is to protect and improve public health, safety, and, as trustee, the quality of the natural and historic resources of the State, including the air, water, and land, for the benefit of all New Jersey residents. To achieve its mission, the Department shall, in the development, implementation, and enforcement of the State's environmental laws, policies, and rules, utilize a science-based approach to reduce the impacts of climate change, further the promise of environmental justice and equity, ensure clean air and water for all, and invest in communities and individuals to further the State's transition to a cleaner, more equitable, and sustainable economy. The Department is committed to direct and meaningful engagement and partnership with Federal and State agencies, local governments, communities, conservation and advocacy organizations and businesses, and the people it serves.

(b) In order to implement the mission, at (a) above, the Commissioner has issued Principles and Priorities, which are available at www.dep.nj.gov/about/.

History

• Amended by 56 N.J.R. 1791(a), effective 9/3/2024

N.J. Admin. Code § 7:1-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Delegee" means the Chief of Staff, Chief Advisor to the Commissioner, any Deputy or Assistant Commissioner, Director, or other individual within the Department, or any organizational unit within the Department, to whom or to which any power, duty or authority of the Commissioner or the Department has been delegated.

"Department" or "DEP" means the New Jersey Department of Environmental Protection.

"Organizational unit" means any division, office, bureau or other entity within the Department.

N.J. Admin. Code § 7:1-1.3 Organization of the Department

(a) The Commissioner is the head of the Department. The Department consists of such offices and other organizational units as are allowed by law and as are necessary to carry out the Department's statutory mandates.

(b) The following organizational units are established pursuant to the Commissioner:

1. Deputy Commissioner;

2. Chief of Staff;

3. Legal and Regulatory Affairs;

4. Management and Budget;

5. Office of Environmental Justice; and

6. Office of Climate Resilience.

(c) The following organizational units are established pursuant to the Commissioner and are headed by Assistant Commissioners:

1. Air, Energy, and Materials Sustainability;

2. Community Investment and Economic Revitalization;

3. Contaminated Site Remediation and Redevelopment;

4. Fish and Wildlife;

State Parks, Forests, and Historic Sites;

6. Water Resource Management; and

7. Watershed and Land Management.

(d) Further detail regarding the Department's organizational units is available on the Department's website, http://www.nj.gov/dep/about.html.

History

• Amended by 49 N.J.R. 2920(c), effective 8/10/2017

N.J. Admin. Code § 7:1-1.4 Communicating with the Department

(a) Persons seeking information from the Department may contact the appropriate organizational units identified at N.J.A.C. 7:1-1.3. The Department also makes available extensive information and search tools on its website (http://www.nj.gov/dep), including news releases, opportunities for public participation, rulemaking documents, and data and reports.

(b) Requests for inspection, copying, or obtaining a copy of any government record under N.J.S.A. 47:1A-1 et seq. (Open Public Records Act) should be submitted to:

Department of Environmental Protection

Office of Record Access

401 East State Street

Mail Code 401-06Q

PO Box 442

Trenton, NJ 08625-0442

E-mail: records.custodian@dep.state.nj.us

Website: www.state.nj.us/dep/opra

(c) Information concerning the types of permits required for a project, timing of permit review, and instructions for completing permit applications may be obtained from the individual program authorized to issue the type of permit required, if known, or:

Department of Environmental Protection

Office of Permit Coordination and Environmental Review

401 East State Street

Mail Code: 401-07J

PO Box 402

Trenton, NJ 08625-0402

(d) The Department publishes the DEP Bulletin, which is a semi-monthly publication listing the construction permit applications recently filed or acted upon by the Department. Using the DEP Bulletin, interested persons can determine the status of Coastal Area Facility Review Act (CAFRA) permits, Federal consistency activity permits, freshwater wetlands individual and general permits, open water fill permits, NJPDES permits, solid waste facility permits, flood hazard area control (stream encroachment) permits, tidal wetlands permits, treatment works approvals, and waterfront development permits. The DEP Bulletin also includes a calendar of events of interest, a schedule of public hearings (which, however, does not constitute an official notice of a hearing), and a list of Environmental Impact Statements acted upon.

1. The DEP Bulletin is available on the Department's website at http://www.nj.gov/dep/bulletin.

2. Publication in the DEP Bulletin constitutes constructive notice to all interested persons of Department actions on construction permits.

(e) Subpoenas for the production of Department records and/or testimony from Department employees must be served upon the Department at the following address:

Department of Environmental Protection

Office of Legal Affairs

401 East State Street, Seventh Floor

Mail Code: 401-04L

PO Box 402

Trenton, NJ 08625-0402

History

• Amended by 49 N.J.R. 2920(c), effective 8/10/2017

N.J. Admin. Code § 7:1-1.5 Effect of delegation of authority

(a) No provision of Title 7 of the New Jersey Administrative Code or of any other rules of the Department which delegates any power, duty or authority of the Department or the Commissioner to any delegee shall be construed to limit the power or authority of the Commissioner over the delegated subject matter. Without limiting the generality of the foregoing, the Commissioner may take any action for which responsibility has been delegated to a delegee, with the same force and effect as if such responsibility had not been delegated. Such actions include, without limitation, the grant or denial of an application for a permit; revocation of a permit; action on any other application to the Department; or the issuance of an administrative order, administrative consent order, directive, notice of violation, or penalty assessment.

(b) The election to exercise any delegated power, duty or authority shall be solely within the discretion of the Commissioner.

(c) No provision of this section shall be construed as affecting any substantive or procedural provisions of Title 7 of the New Jersey Administrative Code or of any other rules of the Department, except to the extent that any such provision delegates any power, duty, or authority of the Department or the Commissioner to any delegee. No provision of this section shall be construed as affecting the right of any person to an administrative hearing under N.J.S.A. 52:14B-10, or administrative review under N.J.S.A. 52:14B-12.

Chapter 1A WATER SUPPLY LOAN PROGRAMS

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1A-1.1 Scope and construction of rules

(a) The following shall constitute the rules governing loans for local projects for the rehabilitation or repair of antiquated, obsolete, damaged or inadequately operating publicly owned water supply facilities, for the interconnection of unconnected or inadequately connected water systems, and for the construction of water supply facilities or public water systems to address contamination problems as identified by the Department, pursuant to the Water Supply Management Act, N.J.S.A. 58:1A-1 et seq., the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., the Water Supply Bond Act of 1981, P.L. 1981, c.261, as amended by P.L. 1983, c.355, N.J.S.A. 58:12A-22 through N.J.S.A. 58:12A-25, and as recommended by the New Jersey Statewide Water Supply Plan. These rules prescribe procedures, minimum standards for conduct of borrowers, and standards for obtaining loans for the rehabilitation or repair of water supply facilities, for interconnections between water supply systems, and for the construction of water supply facilities or public water systems to address contamination problems as identified by the Department.

(b) These rules shall be liberally construed to permit the Department to effectuate the purposes of the law.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• All DEP rules concerning applications for bond loans under the Water Supply Bond Act of 1981, as amended, were consolidated under this chapter. Formerly, N.J.A.C. 7:1A contained rules for the Rehabilitation of Water Supply Facilities only.
• In addition, N.J.A.C. 7:1G concerning Water Supply Bond Loan Regulations for the Interconnection of Water Supply Systems was repealed with the exception of N.J.A.C. 7:1G-2.3 and 2.12 which were recodified as N.J.A.C. 7:1A-4.1 and 4.2, respectively.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substituted "address" for "resolve" and added new text "Water Supply Management Act ... N.J.S.A. 58:12A-1 et seq.," and "P.L. 1988 c.106,".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Corrected statutory cites; added references to public water systems.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (a), inserted reference to repair of water supply facilities.

N.J. Admin. Code § 7:1A-1.2 Purpose of rules

(a) These rules are promulgated for the following purposes:

1. To implement the purposes and objectives of the Water Supply Management Act, N.J.S.A. 58:1A-1 et seq., the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., the Water Supply Bond Act of 1981, P.L. 1981, c.261, as amended by P.L. 1983, c.355, N.J.S.A. 58:12A-22 through N.J.S.A. 58:12A-25, and the New Jersey Statewide Water Supply Plan; and amendments;

2. To establish policies and procedures for administration of funds appropriated pursuant to the above acts for the purpose of making State loans for local projects for the rehabilitation or repair of antiquated, obsolete, damaged or inadequately operating water supply facilities, for the interconnection of unconnected or inadequately connected water supply systems, and for the construction of water supply facilities or public water systems to address contamination problems identified by the Department;

3. To protect the public and the State of New Jersey by insuring that funds appropriated are spent in a proper manner and for the intended purposes;

4. To assure that the distribution and use of funds are consistent with the laws and policies of the State of New Jersey;

5. To establish minimum standards of conduct to prevent conflicts of interest and insure proper administration of loans;

6. To establish accounting procedures for the administration of loans.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• In (a)2, added "for the interconnection of unconnected ... systems, ... problems identified by the Department;".
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Added "Safe Drinking Water Act" and "Water Supply Management Act"; substituted "address" for "resolve".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Corrected statutory cites; added reference to public water systems.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (a)2, deleted "transmission" following "inadequately operating water supply".

N.J. Admin. Code § 7:1A-1.3 Practice where rules do not govern

The Commissioner may rescind, amend, or expand these rules from time to time in conformance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

N.J. Admin. Code § 7:1A-1.4 Annual budget request

(a) The Commissioner shall submit to the State Treasurer and the New Jersey Commission on Capital Budgeting and Planning with the Department's annual budget request, a plan for the expenditure of funds from the "Water Supply Fund" for the upcoming fiscal year.

(b) The plan shall include the following information:

1. A performance evaluation of the expenditures of the fund to date;

2. A description of programs planned during the upcoming fiscal year;

3. A copy of these rules; and

4. An estimate of expenditures for the upcoming fiscal year.

History

• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2472(a).
• Deleted text in (b)3 "governing the purpose ...".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.

N.J. Admin. Code § 7:1A-1.5 Request for legislative appropriations

The Department shall periodically request that the Legislature appropriate funds under the Water Supply Fund pursuant to the Water Supply Bond Act of 1981, P.L. 1981, c.261, and amendments thereto.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "and amendments thereto" added after c.261.

N.J. Admin. Code § 7:1A-1.6 Procedure for obtaining a water supply loan

(a) Each potential applicant for a water supply loan shall:

1. Determine if it meets the eligibility criteria of N.J.A.C. 7:1A-3.1, 4.1, 5.1, 7.3 or 7.4, as appropriate;

2. Arrange for a preapplication conference as required in N.J.A.C. 7:1A-2.3;

3. Complete the application procedures required by N.J.A.C. 7:1A-2.4 or N.J.A.C. 7:1A-7.4(b), as applicable.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• N.J.A.C. references changed.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2472(a).
• Deleted "bond" from text; added sections 7.3 and 7.4 to text in (a)1; added text "or N.J.A.C. 7:1A-7.4(b), as applicable."
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.

N.J. Admin. Code § 7:1A-1.7 Severability

If any section, subsection, provision, clause or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of these rules shall not be affected thereby.

Subchapter 2 LOAN PROCEDURES AND REQUIREMENTS

N.J. Admin. Code § 7:1A-2.1 Scope

This subchapter shall prescribe procedures and requirements for the award of State loans for projects which will effectuate the purposes of the Water Supply Management Act, N.J.S.A. 58:1A-1 et seq., the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., N.J.S.A. 58:12A-22 through N.J.S.A. 58:12A-25, and the Water Supply Bond Act of 1981, P.L. 1981, c.261, as amended by P.L. 1983, c.355, and as recommended by the New Jersey Statewide Water Supply Plan.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• Reference to "rehabilitation of water supply facilities" deleted.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Added text "which will effectuate ... P.L. 1988, c.106, and".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Corrected statutory cite.

N.J. Admin. Code § 7:1A-2.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Water Supply Bond Act of 1981, P.L. 1981, c.261, as amended by P.L. 1983, c.355, the Water Supply Management Act, N.J.S.A. 58:1A-1 et seq., the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., N.J.S.A. 58:12A-22 through N.J.S.A. 58:12A-25, and such other acts and appropriations provided to the Department for the purposes provided in this chapter.

"Action level" means the concentration of lead or copper in water specified in the National Regulations at 40 C.F.R. 141.80(c) which determines, in some cases, the treatment requirements set forth at 40 C.F.R. 141.81, 141.82 and 141.83 that a water system is required to complete.

"Acute violation" means an exceedance of an M.C.L. for a contaminant, for example, fecal coliform or nitrates, that is likely to have immediate health effects.

"Administrator" means the Assistant Director of the Water Supply Element of the Department or the person designated by the Commissioner to carry out the functions of the Administrator for the purposes of this chapter.

"Applicant" means any local unit, municipality, municipally-owned public water system or privately-owned public water system that applies for a loan pursuant to the provisions of these rules and regulations.

"Bonds" means the bonds authorized to be issued, or issued under the Water Supply Bond Act of 1981, P.L. 1981, c.261 or subsequent bond acts.

"Borrower" means an applicant which has received a loan pursuant to the Act and this chapter, and which has executed a loan award document.

"Capital value" means the estimated installed cost of an existing item in its new state at the present time.

"Commission" means the New Jersey Commission on Capital Budgeting and Planning.

"Commissioner" means the Commissioner of the Department or his or her designated representative.

"Construct" and "Construction" mean, in addition to the usual meaning thereof, acts of construction, re-construction, replacement, improvement, betterment and the solicitation of bids in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and the Local Public Contracts rules, N.J.A.C. 5:34.

"Contaminant" means any physical, chemical, biological or radiological substance or matter in water.

"Contamination problems" means an existing potable water supply whose physical, chemical, biological or radiological condition, is or may reasonably be expected to become such that its continued use is detrimental to public health in accordance with the New Jersey Safe Drinking Water Act Regulations, N.J.A.C. 7:10, or in accordance with the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., particularly N.J.S.A. 58:12A-6, as applicable.

"Department" means the New Jersey Department of Environmental Protection.

"Eligible project cost" means the costs which are determined by the Department under this chapter to be eligible for a water supply bond loan.

"Eligible project scope" means: the repair, replacement or reconstruction of antiquated, obsolete, damaged or inadequately operating water supply facilities consisting of pipes and appurtenances, including, but not limited to, pump stations, valves, fire hydrants, meters, service connections, curb stops, surge chambers, existing interconnections and storage tanks which convey water, pre-treatment, disinfection, filtration, chemical and physical handling and feeding equipment, pipes, machinery, control equipment, and appurtenances; or the construction, repair, replacement or reconstruction of parts of an inadequate or nonexistent water supply system interconnection; or the planning, design and construction of water supply facilities or public water systems to address contamination problems as identified by the Department. The applicant's project scope shall conform to one of these criteria to be funded pursuant to this chapter.

"Federal Act" means the Safe Drinking Water Act, P.L. 93-523, 42 U.S.C. §§ 300f et seq., as amended.

"Groundwater supply" means an excavation which is usually cylindrical with a casing or lining sunk into soil or rock material for the purpose of obtaining potable water.

"Interconnection" means a water supply system connection with another water supply system, or with more than one.

"Local unit" means any political subdivision of the State or agency thereof.

"Maximum contaminant level" or "M.C.L." means the maximum permissible level of a contaminant in water measured at the point of entry to the distribution system or at the free-flowing outlet of the ultimate user of a public water system or other water system to which State primary drinking water regulations apply. Contaminants added to the water under circumstances controlled by the user, except those resulting from corrosion of piping and plumbing caused by water quality, are excluded from this definition. Primary drinking water regulations shall be applicable to individually owned wells.

"Municipality" means any city, town, township, borough or village or any agency or instrumentality of one or more thereof.

"National Regulations" means the current primary drinking water regulations promulgated at 40 C.F.R. Part 141 by the United States Environmental Protection Agency pursuant to the Federal Act, as such regulations are amended or supplemented from time to time.

"Primary drinking water regulation" means a regulation which:

1. Applies at a minimum to public water systems;

2. Specifies contaminants which, in the judgment of the Department may have any adverse effect on the health of persons;

3. Specifies for each such contaminant either maximum contaminant level if, in the judgment of the Department, it is economically and technologically feasible to ascertain the level of such contaminant in water in public water systems, or if in the judgment of the Department, it is not economically and technologically feasible to ascertain the level of such contaminant, each treatment technique known to the Department which leads to a reduction in the level of such contaminant sufficient to satisfy the requirements of Section 4 of the New Jersey Safe Drinking Water Act, N.J.S.A. 58:12-4;

4. Contains criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels, including quality control, sampling frequencies, and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system, and requirements as to: the minimum quality of water which may be taken into the system, and siting for new facilities for public systems.

"Primary violation" means exceedance of an M.C.L. for any contaminant regulated under N.J.A.C. 7:10-5, where such exceedance has been determined by specific procedures as established under the National Regulations.

"Project" means any work relating to the rehabilitation of water supply facilities, the construction or rehabilitation of interconnections between water supply systems, or construction of water supply facilities or public water systems to address contamination problems.

"Public water system" means a system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly serves at least 25 individuals daily at least 60 days out of the year. Such term includes:

1. Any collection, treatment, storage and distribution facilities under control of the operator of such system and used primarily in connection with such system; and

2. Any collection or pre-treatment storage facilities not under such control which are used primarily in connection with such system.

"Residences with contaminated wells" means residences in a residential area of more than 1,500 residential units that has been found by the local department of health, or board of health, and the county board of health, or department of health, to have at least 25 percent of the wells supplying potable water to the area with contaminants in excess of the maximum contaminant levels adopted by the Department pursuant to P.L. 1983, c.443 (N.J.S.A. 58:12A-2 et seq.), as applicable.

"Secondary drinking water regulation" means a regulation applying to one or more water systems, and which specifies the recommended upper limits or optimum ranges of contaminants that are necessary to protect the public welfare. A secondary drinking water regulation may apply to any contaminant in drinking water which may adversely affect the taste, odor or appearance of such water or which may otherwise adversely affect the public welfare.

"Secondary violation" means exceedance of a recommended upper limit or optimum range for any contaminant regulated under N.J.A.C. 7:10-7 for which the applicant has received notification issued by the Department that exceedance of any secondary drinking water regulation causes adverse effects on the public welfare, and for which the applicant has received a directive issued by the Department to correct the exceedance.

"Transmission facilities" means those pipes and appurtenances, including, but not limited to, pump stations, valves, fire hydrants, meters, service connections, curb stops, surge chambers, interconnections and storage tanks, which convey finished water.

"Treatment facilities" means those processes, systems and structures needed to assure a quality of drinking water which dependably complies with the Act, including, but not limited to, pre-treatment, disinfection, filtration, chemical and physical handling and feeding equipment, pipes, machinery, control equipment, and appurtenances.

"Type A Funding" means loans awarded to local units out of appropriations made pursuant to the Water Supply Bond Act of 1981, P.L. 1981, c.261, to plan, design and construct projects to address contamination problems as identified by the Department (see this subchapter and N.J.A.C. 7:1A-5).

"Type B Funding" means loans awarded to municipalities, municipally owned public water systems, or privately owned public water systems as defined at N.J.S.A. 58:12A-3, out of appropriations other than appropriations made pursuant to the Water Supply Bond Act, P.L. 1981, c.261, as amended, or other bond acts, to plan, design and construct projects to address contamination problems as identified by the Department other than those addressed under Type C Funding (see this subchapter and N.J.A.C. 7:1A-7).

"Type C Funding" means loans awarded to municipalities, which meet the criteria set forth at N.J.A.C. 7:1A-7.4(b), out of appropriations deposited in the Water Supply Replacement Trust Fund to plan, design and construct projects to address contamination problems meeting special criteria as identified by the Department (see this subchapter and N.J.A.C. 7:1A-7).

"Water supply facilities" means and refers to the plants, structures, service and house connections, well sealings, interconnections between existing water supply facilities, machinery and equipment and other property, personal and mixed, constructed or operated, or to be constructed or operated, in whole or in part by or on behalf of the State, or of a political subdivision of the State or any agency thereof, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, and any and all appurtenances necessary, useful or convenient for the collecting, impounding, storing, improving, treating, filtering or transmitting of water, and for the preservation and protection of these resources and facilities and providing for the conservation and development of future water supply resources, and facilitating incidental recreational uses thereof.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Contaminant", "Contamination problems", "Groundwater supply", "Local unit", "Maximum contaminant level", and "Primary drinking water regulation" defined; "Construct", "Eligible project scope", and "Project" revised.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substantially amended.
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Amended "Act", "Administrator", "Applicant", "Commissioner", "Construct", "Contamination problems", "Department", "Eligible project scope", "Local unit", "Municipality", "Project", "Residences with contaminated wells", and "Type B Funding"; new definition "Public water system".
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• Added "Action level", "Acute violation", "Capital value", "Federal Act", "National Regulations", "Primary violation", "Secondary drinking water regulation", "Secondary violation", and "Treatment facilities"; and amended "Contaminant", "Contamination problems", "Department", "Eligible project scope", "Maximum contaminant level", "Primary drinking water regulation", "Project", and "Transmission facilities".

N.J. Admin. Code § 7:1A-2.3 Preapplication procedures

(a) Every applicant shall request an informal conference prior to making a formal application for a loan. During the conference the Department shall identify and explain all loan application documents. It shall also identify and answer questions concerning other Departmental permits the applicant must obtain prior to being awarded a loan. This conference is not part of the application procedure and verbal statements made during the conference shall not bind the Department. Such conferences may be waived at the discretion of the Department.

(b) Questions concerning the program and requests for a preapplication conference should be directed to:

Department of Environmental Protection

Water Supply Element

CN 426

Trenton, New Jersey 08625

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Preapplication procedures" was formerly codified at N.J.A.C. 7:1A-2.4; the original text of N.J.A.C. 7:1A-2.3, "Eligibility and criteria", was recodified as N.J.A.C. 7:1A-3.1.
• (a): conference waiver added.
• Public Notice: Announcement that the application period for water supply bond rehabilitation and interconnection loan program is until June 30, 1988.
• See: 20 New Jersey Register 1297(c).
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Address change.
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• References to the Division of Water Resources changed to the Department of Environmental Protection and Energy.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (b), amended Department name and address.

N.J. Admin. Code § 7:1A-2.4 Application procedures

(a) To apply for a water supply loan, an applicant shall comply with all the pertinent requirements of this section. The application shall be submitted to the Department on the forms provided for that purpose.

(b) An applicant for a water supply loan shall submit:

1. A completed loan application;

2. A description of how it plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan, and the steps it plans to take before receiving the loan that will guarantee that at the time of the signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete, implement, operate and maintain the project;

3. Evidence that all Federal, State, regional and local agencies with jurisdiction over the area have been notified of the project, including but not limited to the applicable municipal planning board and environmental commission; county planning board and environmental commission; any areawide or regional agencies concerned; and any interconnected or other water systems that may be affected;

4. A written explanation of the need for the project along with distribution system maps of the project area(s);

5. A complete proposal outlining the problem, cause and effect of these problems, and the proposed solution along with a discussion of alternatives to the proposed solution. In the case of loans to address water supply contamination problems, a feasibility study, as approved by the Department, shall be submitted. In the case of rehabilitation loans, measures to insure a safe, continuous and adequately protected water supply to the affected project areas shall be included, as applicable. In the case of rehabilitation loans for pump stations and storage tanks and loans for treatment facilities, justification to the satisfaction of the Department for the proposed solution shall be included, including, but not limited to, a technical analysis, a professional certification, unresolved Departmental administrative orders, unresolved Departmental directive letters, evidence of verifiable system failures and malfunctions, or other justifications as deemed acceptable by the Department;

6. A proposed construction schedule for the project;

7. Proposed financial arrangements for both construction of the project and sale of water between the purveyors concerned, if any, and written confirmation that the proposed arrangements are acceptable to both purveyors and the New Jersey Board of Public Utilities, if applicable;

8. All other forms, agreements and subagreements the Department may require;

9. An estimate of preliminary, developmental, and construction costs by unit prices for the project. Labor, equipment, materials, supplies, overhead and contractor's and consultant's profit with supporting background and summary sheets may be requested by the Department to substantiate the estimates of unit costs. Total project costs and those project costs that the applicant anticipates to be eligible for a loan shall be separately summarized;

10. A brief description of the environmental impact of the proposed project, including brief identifications of environmental impacts of the proposed project on water quality, plant and animal life, project site land characteristics, historical sites and other environmental factors; and

11. Proof of ownership of the project, and the real property on which it is located, or the capability to use that property for water supply purposes;

12. All documentation and other information as may be necessary for the Department to adequately determine the applicant's priority point total pursuant to N.J.A.C. 7:1A-3.2, 4.2, 5.2 or 7.4(a), as appropriate.

(c) Applications shall be signed for the applicant by a person authorized by resolution or ordinance to file an application for a State loan, to represent the applicant in all matters relating to the application process, and to obligate the applicant to the terms and conditions of the loan award document.

1. Each application shall constitute an undertaking to accept the requirements of this chapter and the terms and conditions of the loan award document.

(d) Applications should be submitted well in advance of the application closing date for the application period in which the applicant wishes to be awarded a loan. There shall be at least one application period in each fiscal year. For the rehabilitation loan program, the application closing date for the application period shall be June 30.

1. For the interconnection loan program, the application closing date for the application period shall be June 30. In the case of loans for addressing water supply contamination problems, two annual application periods will be established with closing dates of December 31 and June 30 respectively. However, applications will be received and reviewed on a continuous basis. Those projects meeting exigency standards, as defined at N.J.A.C. 7:1A-5.2(b), shall be processed for immediate funding if available.

2. Additional application periods may be established as deemed necessary by the Department upon publication of a notice of the details of the additional application period in the New Jersey Register.

3. The application closing date for any application period may be extended, if deemed necessary by the Department, upon publication of a notice of extension in the New Jersey Register.

4. If the Department determines that funds are not available to award any loans in a given fiscal year, it may suspend the application period by providing notice of such suspension in the New Jersey Register by April 30.

(e) No loan shall be awarded until a State appropriation is made.

(f) Applications shall be sent to:

Department of Environmental Protection

Water Supply Element

PO Box 426

Trenton, New Jersey 08625-0426

History

• As amended, R.1982 d.281, effective 8/16/1982.
• See: 14 New Jersey Register 499(c), 14 New Jersey Register 915(a).
• (b)8, 9, and 10 added.
• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (b)8: "Summary sheets may be requested by the Department" was "summary sheets shall be included"; (c)1: "or persons" and "represent the applicant ... process," added; (d): "application period" was "year"; "initial application period" added to second sentence; (d)1 added.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Application procedures" was formerly codified at N.J.A.C. 7:1A-2.5; (b)-(e) extensively revised.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substituted "address" for "remedy"; deleted "bond"; added "N.J.A.C. 7:1A-7.4(a)" and changed address.
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Provision for suspension of application period added at (d)4.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (b)5, inserted last sentence; in (b)7, substituted "Board of Public Utilities" for "Board of Regulatory Commissioners"; in (b)12, substituted "Department" for "Division"; and in (f), amended Department name and address.
• Public Notice: Suspension of new application acceptance.
• See: 30 New Jersey Register 1433(a).

N.J. Admin. Code § 7:1A-2.5 Use and disclosure of information

All loan applications, preapplications, and other submittals, when received by the Department, constitute public records. The Department shall make them available to persons who request their release, to the extent allowed by New Jersey and Federal law.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Use and disclosure of information" was formerly codified at N.J.A.C. 7:1A-2.6.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.6 Evaluation of application

(a) The Department shall notify the applicant that it has received the application and is evaluating it pursuant to this section. Each application shall be subjected to:

1. Preliminary administrative review to determine the completeness of the application;

2. Program, technical, scientific and environmental evaluation to determine the merit and relevance of the project to the Department's program objectives, especially those recommendations described in the New Jersey Statewide Water Supply Plan;

3. Budget evaluation to determine whether proposed project costs are eligible, reasonable, applicable, and allowable; and

4. Final administrative evaluation;

5. In cases of loans for water supply contamination problems, priority scoring of each application shall be made as soon as possible.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Evaluation of application" was formerly codified at N.J.A.C. 7:1A-2.7.
• (a)5 added.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.7 Department approval/disapproval

(a) After a full review and evaluation of an application, the Department shall take one of the following actions:

1. Approve for priority ranking, if applicable, and possible loan;

Disapprove the application;

3. Approve for immediate funding, if available.

(b) The applicant shall be promptly notified in writing of any disapproval. A disapproval of an application shall not preclude its reconsideration or resubmittal if resubmitted by the applicant.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (b): "approval" notification deleted: next application "year" changed to "period if resubmitted ...".
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Department approval/disapproval" was formerly codified at N.J.A.C. 7:1A-2.8.
• (a)1: "if applicable" added.
• (a)3 added.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Department substituted for Division.

N.J. Admin. Code § 7:1A-2.8 Amount and terms of loan

(a) The amount of the loan, determined by the Department, shall be based upon eligible project costs as set forth in this chapter.

(b) The interest rate for loans made pursuant to the Water Supply Bond Act of 1981, P.L. 1981, c.261, shall be established at a rate deemed appropriate by the Department of the Treasury, or as specified in appropriation acts.

(c) For rehabilitation and interconnection loans, the loan maturity period shall be for a period of no more than 10 years from the date payments to the borrower begin, unless a longer loan maturity period not to exceed 20 years can be justified to the satisfaction of the Department. For Type A funding the loan maturity period shall be for a period of no more than 20 years from the date that payments to the borrower begin. Principal and accrued interest may be prepaid by the borrower prior to the end of the loan maturity period without penalty.

(d) A rate schedule setting forth the amounts charged for sale of water by the borrower shall be established for each rehabilitation, interconnection or water supply replacement loan. For all borrowers, a portion of receipts, as stipulated by the loan award document, shall be dedicated to a specific fund for the purpose of assuring repayment of the loan by the borrower. The Department may require additional collateral to secure the loan when deemed necessary.

1. When applicable, a New Jersey Board of Public Utilities approved rate schedule setting forth the amounts charged for the sale of water by the borrower shall be established.

(e) All other financial loan terms for loans made pursuant to the Water Supply Bond Act of 1981, P.L. 1981 c.261, shall be established by agreement between the Department and the Department of the Treasury. Loan terms shall be made available to all applicants by the Department in all cases prior to execution of any loan award document.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (b): interest rate originally set at average rate on latest sale of Water Supply Bonds; (c): all new text; (e) added.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Amount and terms of loan" was formerly codified at N.J.A.C. 7:1A-2.9; (a): "Department" was "Division"; (d): Language changed to reflect rehabilitation, interconnection, and water supply contamination loans.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substantially amended.
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Board of Regulatory Commissioners added.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (d)1, substituted "Board of Public Utilities" for "Board of Regulatory Commissioners".

N.J. Admin. Code § 7:1A-2.9 Loan award document

(a) The Department shall prepare and transmit three copies of the loan award document to the applicant.

1. The applicant shall execute the loan award document and return it within 30 calendar days after receipt. The Department may, in its discretion, extend the time for execution. The loan award document shall be signed by a person authorized by resolution or ordinance to obligate the applicant to the terms and conditions of the loan award document.

2. The loan award document shall set forth the terms and conditions of the loan, approved project scope, budget, approved project costs, and the approved commencement and completion dates for the project or major phases thereof.

3. The loan award document shall be deemed to incorporate all requirements, provisions, and information in documents or papers submitted to the Department in the application process.

4. After the Department has completed its internal processing of the loan award document it shall transmit a copy of the executed loan award document to the borrower.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Loan award document" was formerly codified at N.J.A.C. 7:1A-2.10.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.10 Effect of loan award

(a) The loan award document shall become effective immediately after its execution by the Department and the applicant, and shall constitute an obligation of the applicable fund in the amount and for the purposes stated in the loan award document.

(b) The award of the loan shall not commit or obligate the Department to award any continuation loan to cover cost overruns for any project. The Department's policy is that cost overruns for any project or portion thereof are solely the responsibility of the borrower.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Effect of loan award" was formerly codified at N.J.A.C. 7:1A-2.11.
• (b): exception covering "testing of an interconnection" added.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substituted "applicable fund" for "Water Supply Fund".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Modified to eliminate the Department's ability to increase the loan award amount for the costs of subsequent repair, replacement or rebuilding of funded interconnections.

N.J. Admin. Code § 7:1A-2.11 Notice of intent

(a) The Department shall send a Notice of Intent to Award a loan to those approved applicants ranking high enough on the appropriate priority list, if applicable, to receive funds.

(b) The applicants receiving a Notice of Intent to Award a loan shall obtain all necessary Federal, State and local permits and approvals within six months of receipt of the Notice of Intent to Award a loan. Failure to obtain the required permits within the required time period shall make the project ineligible for a loan for that application period unless prior approval for an extension has been granted by the Department pursuant to N.J.A.C. 7:1A-2.12(h).

(c) If subsequent to the issuance of a Notice of Intent to Award, the applicant discovers that costs will exceed those previously estimated, or that the scope of the project will be modified, or any other circumstances appear which affect the award of priority points, the applicant shall notify the Department immediately. The Department shall then recalculate, if appropriate, the applicant's priority determination utilizing the new information submitted.

1. At the discretion of the Department, the Notice of Intent to Award may be recalled if the revised priority determination indicates that some other project should be given priority for selection or that sufficient funds would not be available for the project, or that the project no longer meets exigency standards as defined at N.J.A.C. 7:1A-5.2(b).

2. In addition, if any changes in the project costs, scope or other circumstances result in a reduction in the total eligible loan amount from the total amount specified in the Notice of Intent to Award, the Notice of Intent to Award may be recalled and revised to reflect the irrevocable reduction in the total eligible loan amount approved for the project.

(d) Any applicant receiving a Notice of Intent to Award who decides not to proceed with a project shall notify the Department within 30 days of the date of the notice. Failure to notify the Department within this time period will result in the application being removed from consideration for a loan in the current application period, as applicable.

(e) Applicants with approved projects on a priority list that are not awarded loans in any application period, as applicable, who wish to apply for a position on any subsequent priority list in any subsequent application period, may apply by a timely filing of a new water supply loan application form and by updating the other application documents required by N.J.A.C. 7:1A-2.4. This application will be treated as a new application for a water supply loan and evaluated in accordance with this chapter.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• (a)-(e) were recodified with changes, from (i)-(m) of the original text of N.J.A.C. 7:1A-2.12, "Priority determination".
• (a)-(h) of that text are now found at N.J.A.C. 7:1A-3.2.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.12 Project development phase of water supply loan program

(a) Each applicant receiving a Notice of Intent to Award a loan shall arrange to have a pre-design conference within 30 days after receipt of the notice, and shall submit all materials required by this section to the Department within six months after receipt of the notice or within the time limits of any extension granted pursuant to (h) below.

(b) During the pre-design conference, the Department shall identify and explain the requirements of this section, including design criteria and review of the requirements of the Environmental Assessment specified in (e) below. Based on information furnished by the applicant, the Department shall also determine if an approval is required for the project or any portion thereof pursuant to the Standards for Construction of Public Community Water Systems, N.J.A.C. 7:10-11.

1. If an approval is not required pursuant to the construction standards referred to in (b) above, the applicant shall still be required to comply with the requirements of said construction standards.

2. If an approval is required pursuant to the construction standards referred to in (b) above, the Department shall provide reasonable assistance to the applicant to insure compliance with the requirements of said construction standards as applicable. The Department reserves the right to require approval in accordance with said construction standards at a later date should revised or additional information so indicate.

(c) All applicants for water supply loans shall submit all materials required by this subsection, prepared in accordance with accepted engineering practices, within the specified time period.

1. A complete Engineer's Report shall be prepared, signed and sealed by a New Jersey licensed professional engineer experienced in the field of water supply. The Report shall include but not be limited to the engineering assumptions, references, calculations and conclusions relative to the structural, sanitary and hydraulic design of all elements within the project scope including all information, narrative, data, and computations necessary to support and describe the design developed and shall be in such detail as to permit complete understanding of the project design. Depending on the project scope, the Engineer's Report shall address the distribution network, topographic conditions, geotechnical consideration, pump station performance, and operating characteristics of the distribution storage system, capacity, adequacy, condition, and any changes in estimated priority points.

2. The plans for the water supply bond loan project shall be prepared by an engineer licensed by the State of New Jersey. Each drawing shall be signed and sealed and shall have a title block giving the name and location of the project, the scale or scales used, date, the name of the engineer and his or her license number. Plans shall show clearly the datum to which evaluations shown are referred. The National Geodetic Vertical Datum of 1929, (U.S.G.S.), should be used wherever possible or an equation converting to that datum given. The plans shall clearly reflect and label all existing and proposed features and shall include but not be limited to:

i. A vicinity map showing the location of the water supply loan project. A U.S.G.S. 7 1/2 Minute Quadrangle map or acceptable substitute shall be used for this purpose.

ii. A profile and plan, if required in the judgment of the Department, of the entire transmission-grid system that is to be constructed. The plan shall include, but not be limited to, an index map, water mains, service connections, fire hydrants, gate valves, blowoff valves, air relief valves, pressure reducing valves, pumping stations, surge chambers and storage tanks. The Plan shall also include, but not be limited to, the location of all utilities and sewer lines, that is, pipelines, telegraph and telephone lines, electrical conduits, and sanitary and storm sewers that will have an effect on the project implementation.

iii. If required by the Department, a topographic and pressure contour map of the transmission grid system showing ground elevations and water pressure at various points in the system.

iv. Plan and elevation views of all storage tanks that are to be renovated, as applicable.

v. Plan and elevation views of all pumping stations that are to be renovated, as applicable.

vi. Plan and elevation views of all treatment facilities that are to be renovated, as applicable.

vii. Standard details of all gate valves, check valves, air release valves, drains, surge control equipment, expansion joints, insulation joints, manholes, pump stations, gages, risers, headers and other components of the system that are to be renovated.

3. The operation, maintenance and water sale pricing provisions for the proposed interconnection, covering the responsibilities of the two purveyors interconnected, as applicable.

4. Documents assuring performance of responsibilities of all other purveyors involved with the interconnection project, as applicable.

5. Construction specifications which shall include but not be limited to:

i. The general provisions, which shall specify the rights, duties, and responsibilities of the Owner, Applicant, engineer, builder and the prescribed order of work.

ii. The technical provisions, which shall describe carefully and in detail the approved work methods, equipment, materials to be used, the results to be obtained and the project and payment schedule.

iii. All other provisions, submissions and certifications as deemed necessary by the Department or required in the loan award document.

6. A detailed cost estimate of expenses related to the planning, engineering, design, and construction of the water supply loan project. The breakdown of the cost estimates shall be by unit prices covering estimated labor, equipment, materials, supplies and contractor's overhead and profit. Background sheets will be furnished detailing the computation of the unit prices. A summary form showing Item No., description, estimated quality, unit, unit price, and estimated amount is required.

7. A report from the applicant's governing body detailing its plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, a rate schedule setting forth the amounts charged for the sale of water by the borrower, the steps it has taken to implement this plan and, the steps it plans to take before receiving the loan guaranteeing that at the time of signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project.

(d) The Department reserves the right to waive any of the submission requirements of (c) above, subject to the provisions of the Standards for Construction of Public Community Water Systems, N.J.A.C. 7:10-11, when it has determined that submission of such information is not required or necessary in order for the Department to enter into a Loan Agreement with the applicant.

(e) All applicants except those excluded by (f) below shall submit with the materials required by this section an Environmental Assessment which shall include but not be limited to:

1. A written explanation of the need for the project;

2. A map showing the location and boundaries of the system service area;

3. A statement describing and analyzing possible direct and indirect effects of the proposed activity on the system itself as well as on adjacent and non-contiguous areas with particular reference to the effect of the project on public safety, health and welfare, public and private property, water quality and quantity, the preservation of areas, sites, structures and objects determined to have significant historical, archeological, architectural or cultural value, the public trust in wetlands and wildlife and fisheries; and the protection, preservation and enhancement of the natural environment. It shall describe and analyze:

i. The reasons why this plan and design are the most appropriate for the project;

ii. Temporary and permanent physical changes which would be caused by the proposed activity and the impact of these changes on the activity area and immediate environs;

iii. Alternatives to the proposed project which would reduce or avoid environmental damage;

iv. All measures to be taken during and after the completion of the project to reduce detrimental onsite and offsite effects;

v. Adverse environmental impacts which cannot be avoided and why they cannot be avoided;

vi. The specific benefits of the project.

(f) At the pre-design conference the Department will specify for each project those aspects of the Environmental Assessment it wants emphasized. The Department reserves the right to waive the Environmental Assessment requirement for those projects that have no significant impact on the environment.

(g) The Department shall award a loan to those applicants receiving a Notice of Intent to Award a loan, subject to available appropriations, and the provisions of N.J.A.C. 7:1A-2.11(c), who obtain and submit all required permits and materials, prepared to the satisfaction of the Department, within six months after the Notice of Intent to Award a loan or within the time limits of any extension granted pursuant to (h) below.

(h) Any applicant who fails to submit the required materials prepared in a proper manner and the required permits within the six month period shall lose its eligibility for a loan during that application period, as applicable, unless the time period is extended by the Department.

1. The Department may extend the time for submission of the required materials and/or permits for up to three months if the applicant justifies the need for such extension to the satisfaction of the Department.

The Department may grant an additional three months' extension for the submission of the required permits if the applicant demonstrates to the satisfaction of the Department that the permits are delayed through no fault of its own and that the delay is due to extremely unusual circumstances.

3. The Department may, at its discretion, grant time in addition to the above for submission of all required permits in the case of extenuating circumstances beyond an applicant's control.

History

• As amended, R.1982 d.281, effective 8/16/1982.
• See: 14 New Jersey Register 499(c), 14 New Jersey Register 915(a).
• Added (b), (c)1, (c)2ii and iii, and Tables 1 and 2.
• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (c)iii added; under (g), "application period" was "year".
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Project development phase" was formerly codified at N.J.A.C. 7:1A-2.13. The original text of N.J.A.C. 7:1A-2.12 was "Priority determination"; (a)-(h) of that text are now found at N.J.A.C. 7:1A-3.2; (i)-(m) were recodified at N.J.A.C. 7:1A-2.11 as (a)-(e); (c) revised; new (d) added; former (d)-(g) redesignated (e)-(h); (h)3 added.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Deleted "bond"; substituted "loan" for "system rehabilitation" and substituted "constructed" for "rehabilitated".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• References to Division changed to Department; regulatory and statutory cites corrected.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (b), amended subsection reference from (d) to (e); inserted new (c)2vi; and recodified former (c)2vi as (c)2vii.

N.J. Admin. Code § 7:1A-2.13 Eligible project costs

(a) Project costs shall be allowed to the extent permitted by this chapter and the loan award document. Eligible project costs shall be those costs set forth below:

1. Repair, replacement, or reconstruction of all or part of any obsolete, damaged, antiquated, or inadequately operating water supply facilities, or any obsolete or antiquated water supply interconnection or construction of a new interconnection, or the planning, design and construction of water supply facilities or public water systems to address contamination problems as identified by the Department, within the scope of the approved feasibility study, including planning costs when so approved by the Department;

2. Geological and hydraulic services;

Interconnection testing;

4. Engineering and inspection costs;

5. Legal expenses;

6. Financial, professional, and other estimates and advice;

7. All other such expenses as may be necessary or incidental to the administration, financing, construction, reconstruction, and completion of the project, or part thereof and the placing of same in operation except as excluded by this section.

(b) Ineligible project costs shall be those costs set forth below:

1. Land acquisition costs;

2. Project design and development costs incurred prior to November 3, 1981;

3. Any costs associated with a project for which construction commenced prior to the filing of a loan application with the Department;

4. Salaries of regular water purveyor employees, expenses for governmentally owned or purveyor owned equipment, and other such force account expenses; and

5. Interest expenses.

(c) Development and construction project contracts must be awarded in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and the Local Public Contracts rules, N.J.A.C. 5:34.

(d) Borrowers shall be provided the actual costs incurred and properly documented for the total cost of the project by the contractor(s) and subcontractor(s).

(e) Project application, design and development costs shall not be reimbursed until construction contracts have been awarded.

(f) Prior to any final award of bids for construction contracts the borrower shall submit for the Department's review and approval the final construction contracts with work specifications detailing any changes made since the Department's previous design approval.

1. The borrower shall provide a tabulation of bids received and name the party to be awarded the construction contract for the project. In the event contracts are not proposed to be awarded to the contractor submitting the lowest bid, the borrower shall provide adequate justification for said award.

2. The Department reserves the right to require the borrower to readvertise the bid specifications for the project if the certifications required in (f)3 below are deemed unsatisfactory by the Department.

3. The borrower shall certify to the Department the following:

i. The borrower's compliance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., and the Local Public Contracts rules, N.J.A.C. 5:34;

ii. That all contracts for the project will be awarded to the qualified, responsible and responsive bidder submitting the lowest acceptable bid; and

iii. That the bid prices included in the bid specifications are reasonably balanced.

(g) The borrower shall forward copies of the executed construction contracts and subcontracts and associated documents to the Department within 10 days of their execution.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (b)5, (f) and (g) added; under (d), "total cost" language added, "maximum specified in the loan award document" deleted; under (e), project "application" added.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Eligible project costs" was formerly codified at N.J.A.C. 7:1A-2.14. (a)1: eligible project costs broadened to include interconnections and resolution of contamination problems; deleted former (a)7 concerning organization and operating expenses; (a)8 made 7, "administration" and "construction" of project inserted; (b)4: exception added; (f)1: "tabulation of bids received" and award justification added.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substituted "address" for "resolve".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to public water systems added; reference to Local Public Contract rules added.
• Administrative correction to (f)3i.
• See: 24 New Jersey Register 4368(a).
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (a)1, substituted "facilities" for "transmission system" following "inadequately operating water supply".

N.J. Admin. Code § 7:1A-2.14 Unused loan funds

Funds saved from projects whose actual eligible implementation costs are less than the estimated eligible costs, shall be retained by the State and deposited in the applicable fund to be applied to new water supply rehabilitation, interconnection or contamination projects, as appropriate, pursuant to the act and this chapter.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Unused loan funds" was formerly codified at N.J.A.C. 7:1A-2.15.
• "interconnection or contamination projects, as appropriate," added.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Substituted "applicable fund" for "Water Supply Fund".
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.

N.J. Admin. Code § 7:1A-2.15 Recycling of funds

(a) Subject to Federal and/or State law, funds from repayment of loans issued under the authority of the Water Supply Bond Act of 1981 and this chapter shall be deposited in the Water Supply Fund created pursuant to the Water Supply Bond Act of 1981 and shall remain available for further disbursements as new loans to be awarded pursuant to this chapter.

(b) Funds from repayment of loans issued under the authority of acts other than the Water Supply Bond Act of 1981 or other bond acts shall be deposited in the Water Supply Replacement Trust Fund and shall remain available for further disbursement as new loans to be awarded pursuant to this chapter.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Recycling of funds" was formerly codified at N.J.A.C. 7:1A-2.16.
• Emergency amendment, R.1988 d.479, effective 9/19/1988 (expires November 18, 1988).
• See: 20 New Jersey Register 2470(a).
• Defined Act and added (b).
• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted without change.

N.J. Admin. Code § 7:1A-2.16 Fraud and other unlawful or corrupt practices

(a) The borrower shall administer loans, award contracts and subcontracts pursuant to the loans free from bribery, graft, and other corrupt practices. The borrower bears the primary responsibility for the prevention, detection and cooperation in the prosecution of any such conduct.

(b) The borrower shall pursue available judicial and administrative remedies, and take appropriate remedial action with respect to any allegations or evidence of such illegality or corrupt practices. The borrower shall notify the Administrator immediately after such allegation or evidence comes to its attention, and shall periodically advise the Administrator of the status and ultimate disposition of any matter.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Fraud and other ... practices" was formerly N.J.A.C. 7:1A-2.17.

N.J. Admin. Code § 7:1A-2.17 Loan conditions

(a) The following requirements, in addition to such other statutes, rules, terms and conditions as may be applicable to particular loans, are conditions of each loan and conditions precedent to each payment under a loan award document:

1. The borrower shall certify that the project or phase of the project was initiated and completed in accordance with the time schedule specified in the loan award document.

2. The borrower must submit proof of it and its contractors, and subcontractors, compliance with all hazard insurance requirements of the loan award document and certify that the insurance is in full force and effect and that the premiums have been paid.

3. The borrower shall certify that it and its contractors and subcontractors are maintaining their financial records in accordance with accounting principles required by New Jersey law.

4. The borrower shall certify that it and its contractors and their subcontractors are in compliance with the discrimination and affirmative action provisions of N.J.S.A. 10:2-1 through N.J.S.A. 10:2-4, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., and the rules and regulations promulgated pursuant thereto.

5. The borrower shall certify that the borrower includes in all its construction or development contracts for the project a requirement that the contractor post a performance bond or other performance guarantee in an amount equal to the full cost of the project.

i. This performance bond or guarantee shall remain in effect until the Department's final inspection of the project and determination in writing that the project is satisfactorily completed.

ii. The performance bond or performance guarantee shall be both nondiscriminatory and financially satisfactory to the Department, and meet all statutory requirements.

6. The borrower shall certify that it is in compliance with all other requirements and conditions of the loan award document.

7. Bid specifications shall require that water supply project elements which constitute ineligible project costs be bid as separate line items in the total bid specifications from water supply project elements which constitute eligible project costs.

8. Bid specifications shall require that each general contractor bidding on the water supply project name the principal subcontractors at the time of his bid submission to the borrower.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (a)1: "borrower shall certify that the" inserted; "was initiated" replaced "must have been initiated".
• (a)5: "certify that the borrower" inserted; "and meet all statutory requirements" added to ii.
• (a)8 and 9 added.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Loan conditions" was formerly codified at N.J.A.C. 7:1A-2.18.
• Deleted former (a)7 concerning certification of compliance with all applicable laws and regulations; (a)8 and 9 made 7 and 8, "water supply project" replace "rehabilitation project".
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.18 Administration and performance of loan

The borrower bears primary responsibility for the administration and success of the project, including any subagreements made by the borrower for accomplishing loan objectives. Although borrowers are encouraged to seek the advice and opinion of the Department on problems that may arise, the giving of such advice shall not shift the responsibility for final decisions to the Department. The primary concern of the Department is that loan funds awarded be used in conformance with these rules and the loan agreements to achieve loan objectives and to insure that the purposes set forth in the Water Supply Bond Act of 1981, and amendments, and the recommendations of the New Jersey Statewide Water Supply Plan are fully executed.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Administration and performance of loan" was formerly codified at N.J.A.C. 7:1A-2.19.

N.J. Admin. Code § 7:1A-2.19 Access

(a) The borrower and its contractor and subcontractors shall provide access to the Department personnel and any authorized representative of the Department to the facilities, premises and records related to the project.

1. All contracts executed by the borrower and its contractors and subcontractors shall contain provisions allowing for departmental access to any facilities, premises and records related to the project.

2. The borrower shall submit to the Department such documents and information as requested by the Department.

i. All borrowers, contractors and subcontractors may be subject to a financial audit.

ii. Records shall be retained and available to the Department for a minimum of three years after issuance of the final payment by the Department.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (a)1 added.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Access" was formerly codified at N.J.A.C. 7:1A-2.20.

N.J. Admin. Code § 7:1A-2.20 State payment

State funds shall be released to the borrower upon completion of the entire project to the satisfaction of the Department, or, on an interim basis. If interim payments are made, they will be equal to the loan amount corresponding to the percent of the total project completed. Ten percent of all payments shall be withheld until the whole project has been completed to the satisfaction of the Department. No payments shall be made until the Department receives satisfactory cost documentation which shall include all forms and information required by the Department and completed in a manner satisfactory to the Department. In the case of interconnection loan projects, the ten percent final payment shall not be made until an Operation and Maintenance Manual for the interconnection project has been approved and a final agreement between interconnected parties for carrying out Operation and Maintenance responsibilities has been executed and approved by the Department.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "State payment" was formerly codified at N.J.A.C. 7:1A-2.21.
• Final payment exception concerning interconnection projects added.

N.J. Admin. Code § 7:1A-2.21 Assignment

The right to receive payment from the State under a loan may not be assigned, nor may payments due under a loan be similarly encumbered.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Assignment" was formerly codified at N.J.A.C. 7:1A-2.22.

N.J. Admin. Code § 7:1A-2.22 Publicity and signs

(a) Press releases and other public dissemination of information by the borrower concerning the project work shall acknowledge State loan support.

(b) A project identification sign, at least eight feet long and four feet high, bearing the emblem of the Department, shall be displayed in a prominent location at each publicly visible project site and facility. The sign shall identify the project, State loan support, and other information as required by the Department.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Publicity and signs" was formerly codified at N.J.A.C. 7:1A-2.23.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Division changed to Department.

N.J. Admin. Code § 7:1A-2.23 Debarment

(a) No borrower shall enter into a contract for work on a water supply loan project with any person debarred, suspended or disqualified from Department contracting pursuant to N.J.A.C. 7:1D-2.

(b) Borrowers shall insert in every contract for work on a water supply loan project a clause stating that the contractor may be debarred, suspended or disqualified from contracting with the State and the Department if the contractor commits any of the acts listed in N.J.A.C. 7:1D-2.2.

(c) Bid specifications prepared by the borrower shall require bidders to submit a sworn statement of the bidder, or an officer or partner of the bidder, indicating whether or not the bidder is, at the time of the bid, included on the State Treasurer's List of Debarred, Suspended and Disqualified bidders. Bid specifications shall also state that the borrower will immediately notify the Department whenever it appears that a bidder is on the Treasurer's list. The Department reserves the right, in such circumstances, to immediately suspend such bidder from Department contracting, and to take such other action pursuant to N.J.A.C. 7:1D-2 as is appropriate.

(d) Whenever a bidder is debarred, suspended or disqualified from Department contracting pursuant to N.J.A.C. 7:1-5, the borrower may take into account the loss of Department loan funds under these regulations which would result from awarding a contract to such bidder, in determining whether such bidder is the lowest responsible bidder pursuant to law; and the borrower may advise prospective bidders that these procedures will be followed.

(e) Any person included on the Treasurer's List as a result of action by a State agency other than the Department, who is or may become a bidder on any contract which is or will be funded by a loan under this chapter may present information to the Department why this section should not apply to such person. If the Commissioner of the Department determines that it is essential to the public interest and files a finding thereof with the Attorney General, the Commissioner may make an exception from the application of this section with respect to a particular contract in keeping with N.J.A.C. 7:1D-2.9. In the alternative the Department may suspend or debar any such person, or take such other action as may be appropriate, pursuant to N.J.A.C. 7:1D-2.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Debarment" was formerly codified at N.J.A.C. 7:1A-2.24.
• Administrative change.
• See: 32 New Jersey Register 1796(a).

N.J. Admin. Code § 7:1A-2.24 Project changes and loan modifications

(a) A loan modification means any written alteration of the loan terms or conditions, budget or project method or other administrative, technical or financial agreements.

(b) Due to the limited amount of funds available for water supply projects there shall be no loan modification increasing the loan amount. Increased costs resulting from a loan modification shall be the responsibility of the borrower.

(c) The borrower shall promptly notify the Administrator in writing (certified mail, return receipt requested) of events or proposed changes which may require a loan modification including but not limited to:

1. Rebudgeting;

2. Changes in approved technical plans or specifications for the project;

3. Changes which may affect the approved scope or objective of a project;

4. Significant, changed conditions at the project site;

5. Deceleration in the time for the performance of the project or any major phase thereof;

6. Changes which may increase or substantially decrease the total cost of a project;

7. Changes in key personnel identified in the loan award document or a reduction in time or effort devoted to the project by such personnel.

(d) If the Department decides a formal loan amendment is necessary, it shall notify the borrower and a formal loan amendment shall be prepared in accordance with N.J.A.C. 7:1A-2.25. If the Department decides a formal loan amendment is not necessary, it shall follow the procedures of N.J.A.C. 7:1A-2.26 or 2.27, as applicable.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Project changes and loan modifications" was formerly codified at N.J.A.C. 7:1A-2.25.
• (d): N.J.A.C. references changed.

N.J. Admin. Code § 7:1A-2.25 Formal loan award amendments

(a) The Department shall require a formal loan award amendment to change principal provisions of a loan where project changes substantially alter the cost or time of performance of the project or any major phase thereof.

(b) The Department and borrower shall effect a formal loan award amendment only by a written amendment to the loan award document.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Formal loan award amendments" was formerly codified at N.J.A.C. 7:1A-2.26.

N.J. Admin. Code § 7:1A-2.26 Administrative loan changes

Administrative changes by the Department, such as change in the designation of key Department personnel or of the office to which a report is to be transmitted by the borrower, or a change in the payment schedule for loans for planning, design, and construction of water supply projects, constitute changes to the loan award document (but not necessarily to the project work) and do not affect the substantive rights of the Department or the borrower. The Department may issue such changes unilaterally. Such changes shall be in writing and shall generally be effected by a letter (certified mail, return receipt requested) to the borrower.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Administrative loan changes" was formerly codified at N.J.A.C. 7:1A-2.27.

N.J. Admin. Code § 7:1A-2.27 Other changes

All other project changes, which do not require formal loan award amendment, require written approval of the Administrator.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Other changes" was formerly codified at N.J.A.C. 7:1A-2.28.

N.J. Admin. Code § 7:1A-2.28 Noncompliance

(a) In addition to any other rights or remedies available to the Department pursuant to law, in the event of noncompliance with any loan conditions, requirement of this chapter, or loan award document requirement or specifications, the Department may take any of the following actions or combinations thereof:

1. Issue a notice of noncompliance pursuant to N.J.A.C. 7:1A-2.29;

2. Withhold loan funds pursuant to N.J.A.C. 7:1A-2.30;

3. Order suspension of the project work pursuant to N.J.A.C. 7:1A-2.31;

4. Terminate or annul a loan pursuant to N.J.A.C. 7:1A-2.32 and 7:1A-2.33.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Noncompliance" was formerly codified at N.J.A.C. 7:1A-2.29.
• N.J.A.C. references changed.

N.J. Admin. Code § 7:1A-2.29 Notice of noncompliance

When the Department determines that the borrower is in noncompliance with any condition or requirement of these rules or with any loan award document specification or requirement, it shall notify the borrower of the noncompliance. The Department may require the borrower, its engineer, and/or contractor to take and complete corrective action within 10 working days of receipt of notice. If the borrower, its engineer, and/or contractor do not take corrective action or if it is not adequate, then the Department may issue a stop work order or withhold payment. The Department may, however, withhold payment pursuant to N.J.A.C. 7:1A-2.30 or issue a stop work order pursuant to N.J.A.C. 7:1A-2.31 without issuing a notice pursuant to this section.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Notice of noncompliance" was formerly codified at N.J.A.C. 7:1A-2.30.
• N.J.A.C. references changed.

N.J. Admin. Code § 7:1A-2.30 Withholding of funds

The Department may withhold a loan payment or any portion thereof when it determines in writing that a borrower has failed to comply with any loan condition, provisions of this chapter, or loan award document specification or requirement.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Withholding of funds" was formerly codified at N.J.A.C. 7:1A-2.31.

N.J. Admin. Code § 7:1A-2.31 Stop work orders

(a) The Department may order work to be stopped for good cause. Good cause shall include, but not be limited to, default by the borrower or noncompliance with the terms and conditions of the loan. The Department shall limit use of a stop work order to those situations where it is advisable to suspend work on the project or portion or phase of the project for important program or Department considerations.

(b) Prior to issuance, the Department shall afford the borrower an opportunity to discuss the stop work order with the Department personnel. The Department shall consider such discussions in preparing the order. Stop work orders shall contain:

1. The reasons for issuance of the stop work order;

2. A clear description of the work to be suspended;

3. Instructions as to the issuance of further orders by the borrower for materials or services;

4. Guidance as to action being taken on subagreements;

5. Other suggestions to the borrower for minimizing costs.

(c) The Department may, by written order to the borrower (certified mail, return receipt requested) require the borrower to stop all, or any part of, the project work for a period of not more than 45 days after the borrower receives the order, and for any further period to which the parties may agree.

(d) Effect of stop work order.

1. Upon receipt of a stop work order, the borrower shall immediately comply with the terms thereof and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within the suspension period or within any extension of that period to which the parties shall have agreed, the Department shall either:

i. Rescind the stop work order, in full or in part;

ii. Terminate the work covered by such order;

iii. Authorize resumption of work.

2. If a stop work order is cancelled or the period of the order or any extension thereof expires, the borrower shall promptly resume the previously suspended work. An equitable adjustment shall be made in the loan period, the project, or both of these, and the loan award document shall be modified accordingly within discretion of the Department.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Stop work orders" was formerly codified at N.J.A.C. 7:1A-2.32.

N.J. Admin. Code § 7:1A-2.32 Termination of loans

(a) The Department may terminate a loan in whole or in part for good cause subject to negotiation and payment of appropriate termination settlement costs. The term "good cause" shall include but not be limited to substantial failure to comply with the terms and conditions of the loan, or default by the borrower.

1. The Department shall give written notice to the borrower (certified mail, return receipt requested) of intent to terminate a loan in whole or in part at least 10 days prior to the intended date of termination, stating reasons for the proposed termination.

2. The Department shall afford the borrower an opportunity for consultation prior to any termination. After such opportunity for consultation, the Department may, in writing (certified mail, return receipt requested) terminate the loan in whole or in part.

(b) A borrower shall not unilaterally terminate the project work for which a loan has been awarded, except for good cause and subject to negotiation and payment of appropriate termination settlement costs. The borrower shall promptly give written notice to the Administrator of any complete or partial termination of the project work by the borrower. If the Department determines that there is good cause for the termination of all or any portion of a project for which the loan has been awarded, the Department may enter into a termination agreement or unilaterally terminate the loan effective with the date of cessation of the project work by the borrower. If the Department determines that a borrower has ceased work on a project without good cause, the Department may unilaterally terminate the loan pursuant to this section or annul the loan pursuant to N.J.A.C. 7:1A-2.33.

(c) The Department and borrower may enter into an agreement to terminate the loan at any time pursuant to terms which are consistent with this chapter. The agreement shall establish the effective date of termination of the project and loan, basis for settlement of loan termination costs, and the amount and date of payment of any sums due either party.

(d) Upon termination, the borrower shall refund or credit to the State of New Jersey that portion of loan funds paid to the borrower and allocable to the terminated project work, except such portion thereof as may be required to meet legal obligations incurred prior to the effective date of termination and as may be otherwise allowable. The borrower shall make no new commitments without Department approval.

1. The borrower shall reduce the amount of outstanding commitments insofar as possible and report to the Administrator the uncommitted balance of funds awarded under the loan. The Department shall make the final determination of the allowability of termination costs.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Termination of loans" was formerly codified at N.J.A.C. 7:1A-2.33.
• (b): N.J.A.C. reference changed.

N.J. Admin. Code § 7:1A-2.33 Annulment of loan

(a) The Department may, in writing, annul the loan if it determines that:

Without good cause therefor substantial performance of the project work has not occurred;

2. The loan was obtained by fraud; or

3. Gross abuse or corrupt practices in the administration of the project have occurred.

(b) At least 10 days prior to the intended date of annulment, the Department shall give written notice to the borrower (certified mail, return receipt requested) of intent to annul the loan. The Department shall afford the borrower an opportunity for consultation prior to annulment of the loan. Upon annulment of the loan, the borrower shall return all loan funds previously paid to the borrower. The Department shall make no further payments to the borrower. In addition, the Department shall pursue such remedies as may be available under Federal, State and local law.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Annulment of loan" was formerly codified at N.J.A.C. 7:1A-2.34.

N.J. Admin. Code § 7:1A-2.34 Administrative hearings

(a) The Administrator shall make the initial decision regarding all disputes arising under a loan. The borrower shall be required to specify in writing and in detail the basis for its appeal. When a borrower so requests, the Administrator shall reduce a decision to writing and mail or otherwise furnish a copy thereof to the borrower.

(b) A borrower may request a hearing within 15 days of a decision by the Administrator. The hearing request shall be addressed to: New Jersey Department of Environmental Protection, Office of Administrative Hearings and Dispute Resolution, ATTENTION: Adjudicatory Hearing Requests, 401 E. State Street, Mail Code 401-07A, PO Box 420, Trenton, NJ 08625-0420. The request for a hearing shall specify in detail the basis for the appeal.

(c) Following receipt of an acceptable request for a hearing pursuant to (b) above, the Department may attempt to settle the dispute by conducting such proceedings, meetings and conferences as deemed appropriate.

(d) If the borrower raises a substantial and meritorious issue and such efforts at settlement fail, the Department shall file the request for a hearing with the Office of Administrative Law. Such hearings--shall be granted and conducted in accordance with the provisions of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and N.J.S.A. 52:14F-1 et seq. and any rules promulgated pursuant to those Acts.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• "in writing" requirement added to (b); new (c) added, old (c) made (d) and cross-reference to (b) inserted.
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Administrative hearings" was formerly codified at N.J.A.C. 7:1A-2.35; (b): "basis for appeal" requirement added; requirement to hold a hearing based upon a request deleted; (c): discretion to file a hearing request with OAL deleted; (d): requirement to file a hearing request with OAL added.
• Administrative change to (b).
• See: 23 New Jersey Register 3325(b).
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference to Director of Division changed to Administrator.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (b), amended Department name.

Subchapter 3 REHABILITATION

N.J. Admin. Code § 7:1A-3.1 Eligibility and criteria

(a) Any local unit operating an antiquated, obsolete, damaged or inadequately operating water supply transmission facility in need of rehabilitation or repair is eligible for a loan in any application period where it satisfactorily completes the loan application process in a timely manner, meets the eligibility criteria set forth in this subchapter, receives the minimum priority score, and ranks high enough on the priority list to be funded. To receive a loan the project shall meet the following criteria to the satisfaction of the Department.

1. The minimum priority score set out in N.J.A.C. 7:1A-3.2 below.

2. The project shall be an independent and complete water supply rehabilitation project. An independent and complete project is one which by its implementation alone will render the specified portion(s) of the system adequate and efficient and will accomplish the purpose set forth in the application.

3. The project shall not be excessively expensive or cause unacceptably high environmental damage.

4. The project shall not conflict with any other State projects.

5. The application must be accompanied by adequate explanation of how the local unit plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan and the steps it plans to take before receiving the loan that will guarantee that at the time of the signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project. The local unit must comply with all standard loan provisions of the State of New Jersey.

6. The application documents shall clearly state and document how the loan will accomplish the goal set out in the application.

History

• As amended, R.1983 d.534, effective 11/21/1983.
• See: 15 New Jersey Register 1307(a), 15 New Jersey Register 1940(a).
• (a): "application period" was "year".
• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Eligibility and criteria" was formerly codified at N.J.A.C. 7:1A-2.3.
• (a)1: reference was N.J.A.C. 7:1A-2.12.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• "Applicant" changed to "local unit".

Subchapter 4 INTERCONNECTION

N.J. Admin. Code § 7:1A-4.1 Eligibility and criteria

(a) Any local unit whose system includes an antiquated, damaged, or inadequate water supply interconnection in need of rehabilitation, or repair or consolidation, or whose system lacks interconnections which qualify either as Class A or as Class B interconnections, as further defined in N.J.A.C. 7:1A-4.2, is eligible for a loan in any application period where it satisfactorily completes the loan application process in a timely manner, meets the eligibility criteria set forth in this subchapter, receives the minimum priority score, and ranks high enough on the priority list to be funded. A local unit may apply for interconnections with privately owned as well as publicly owned systems. To receive a loan the project shall meet the following criteria to the satisfaction of the Department:

1. Except for the Great Notch and New Brunswick--South River area interconnection projects the minimum priority score set out in N.J.A.C. 7:1A-4.2.

2. The project shall be an independent and complete water supply interconnection project. An independent and complete project is one which by its implementation alone will accomplish the purpose set forth in the application and raise at least one of the systems interconnected closer to the status of Class A or B interconnections.

3. The project shall have as its basic purpose the interconnection of water supply systems. It shall not be excessively expensive or cause unacceptable environmental damage.

4. The project shall not conflict with any other State projects.

5. The application shall be accompanied by adequate explanation of how the local unit plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan, and the steps it plans to take before receiving the loan that will guarantee that at the time of the signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project. The local unit shall comply with all standard loan provisions of the State of New Jersey.

6. The application documents shall clearly state and document how the loan will accomplish the goal set out in the application; and

7. No water supply interconnection project is eligible for a loan if construction on the project has commenced prior to filing of the loan application with the Department.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Eligibility and criteria" was formerly codified at N.J.A.C. 7:1G-2.3.
• (a): references were N.J.A.C. 7:1G-2.12.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• "Applicant" changed to "local unit".

N.J. Admin. Code § 7:1A-4.2 Priority determination

(a) Each project shall be assigned priority points in accordance with the provisions outlined in this section. A project shall be ranked by the number of priority points it receives.

1. A water supply system serving 10,000 or fewer residents shall be eligible for a loan if it receives at least eight priority points.

2. A water supply system serving between 10,001 and 50,000 residents shall be eligible for a loan if it receives at least 12 priority points.

3. A water supply system serving more than 50,000 residents shall be eligible for a loan if it receives at least 16 points.

4. In the instance of systems with a large seasonal variation in the number of residents, the residential population figure utilized for the purpose of this section shall be the mean of the greater and twice the lower residential population as determined by data deemed acceptable to the Department for the most recent year.

5. If in any application period there shall be less eligible projects than funds available for any of the three size categories, the eligible projects shall only be required to receive the minimum number of priority points set forth in this subsection and the remainder of the competitive priority ranking provisions of this section shall be waived.

(b) All applications must meet the criteria set forth in N.J.A.C. 7:1A-4.1 to be eligible for a loan.

(c) Three separate priority lists shall be established in each application period according to the size of water supply systems as set forth in (a) above. Appropriations for each of the priority lists shall be determined as a percentage of the total periodic appropriations by the Legislature to the Department for the purpose of implementing this chapter. An interconnection project shall be placed into its appropriate category according to the residential population served by the local unit's water supply system.

1. Forty percent of the total Departmental appropriation for the purposes of implementing this regulation shall be appropriated for those eligible water supply systems that serve less than or equal to 10,000 residents;

2. Thirty percent of the total Department appropriation for the purposes of implementing this chapter shall be appropriated for those eligible water supply systems that serve between 10,001 through 50,000 residents; and

3. Thirty percent of the total Departmental appropriation for the purpose of implementing this chapter shall be appropriated for those eligible water supply systems that serve greater than 50,000 residents.

(d) If in any application period there are an insufficient number of eligible projects on any of the priority lists, the excess of funds designated for that category shall be disbursed to eligible projects on the other priority lists in the same proportions as set forth in (c) above.

(e) A maximum loan amount for each project shall be set for each of the three categories of projects as follows:

1. A water supply system serving 10,000 or fewer residents may receive a loan of up to one million dollars maximum;

2. A water supply system serving between 10,001 and 50,000 residents may receive a loan of up to two million dollars maximum;

3. A water supply system serving greater than 50,000 residents may receive a loan of up to three million dollars maximum;

4. Any loan funds appropriated for a project in excess of the actual costs spent for the completed project shall be returned to the Water Supply Fund pursuant to the Act within 30 days of final payment to the borrower by the Department.

(f) The specific goal of interconnections is to bring all purveyor systems as far as practicable into either Condition A or Condition B, as specified below.

1. In Condition A, a system shall have interconnection capacity from adjacent systems sufficient to maintain its water supply at a minimum of 75 percent of its average water supply demand while burdening no one adjacent system for more than 25 percent of its (the adjacent system's) average water supply demand.

2. In Condition B, when Condition A is impracticable to achieve, the system shall have sufficient interconnection capacity from adjacent systems to maintain its water supply at a minimum of 50 percent of its average water supply demand while burdening no one adjacent system for more than 35 percent of its (the adjacent system's) average water supply demand.

3. The average water supply demand for the local unit's and interconnected purveyors service areas shall be calculated by totaling the daily water supply demand over a one year period ending in the month of the submission of the local unit's interconnection loan application and dividing this sum by 365.

4. In instances where Condition A is impractical to achieve, the local unit shall provide justification to the satisfaction of the Department why Condition A cannot be achieved.

5. If an interconnection project results in a burden upon any adjacent supplying system in excess of 25 percent under Condition A or 35 percent under Condition B, said project shall not be eligible for an interconnection loan. An interconnection project that will increase the total interconnection capacity of a system significantly in excess of Condition A criteria shall not be fully eligible for interconnection loan funding. An interconnection project that will increase the total interconnection capacity of a system significantly in excess of Condition B criteria shall not be fully eligible for interconnection loan funding except when the project serves to decrease the reliance of the benefiting system on adjacent systems to significantly less than 35 percent.

(g) An interconnection shall be deemed to add to the water supply of either system when it is physically capable of providing an amount of additional flow under conditions of pressure and flow expected to prevail at such time, and when located where it may be distributed to points of use. An interconnection may be deemed to benefit both systems, if that will actually be the case under failure of either system.

(h) Priority points shall be governed by the following:

1. The percentage of the average water supply of a system which the interconnection can provide, up to the specific target level of 75 percent under Condition A and up to 50 percent under Condition B, computed for the two systems separately, will equal points allowed.

2. For each new interconnection or each existing interconnection not used or tested during the previous five years, which is proposed to be under the loan and which will have a capacity greater than one percent of the total average system demand, two points will be allowed.

3. Priority points shall be awarded in the amount of 10 priority points for any administrative order issued by the Department to the local unit requiring an interconnection, provided that the local unit's project scope provides for the implementation of the actions ordered by the Department in such relevant administrative order. Priority points shall also be awarded in the amount of five priority points for any directive or recommendation to provide and improve an interconnection provided that the local unit's project scope provides for the implementation of the actions directed by the Department in such relevant directive or recommendation letter.

i. No administrative order, directive or recommendation issued subsequent to September 20, 1982 may be counted towards the local unit's priority point total except for those orders issued in accordance with the procedures established by N.J.S.A. 58:1A-15e.

4. A ratio will be estimated of the maximum amount allowable for that residential size category of interconnection divided by the amount of the proposed loan.

5. A second ratio will be estimated of the residents served divided by 10,000 for small systems, 50,000 for intermediate systems, and 100,000 for the largest systems. The minimum value of this ratio is 0.5.

6. The product of these two ratios, times the sum of the points allowed under (h)1, 2 and 3 above, will equal the priority number allowed, for determination of priorities within each of the categories. In the event of a tie, the applicants shall be ranked in the order of receipt of the loan application by the Department.

History

• As amended, R.1984 d.232, effective 6/18/1984.
• See: 16 New Jersey Register 631(a), 16 New Jersey Register 1479(a).
• "Priority determination" was formerly codified at N.J.A.C. 7:1G-2.12. (c): in third sentence, category determination was by "size of the smaller of the systems interconnected"; (f)1 and 2: clarified language concerning adjacent systems and demand; (g): in first sentence, "and when located" was "at points"; (h)2: added "or each existing interconnection", previous "five" years, and total "average" system demand; (h)4: "residential size category" was "category".
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• The maximum loan amounts allowed for subcategory of interconnection loan projects have been increased; amended to clarify that the system capacities described in these sections are minimum criteria and the denominator in the priority point ranking system ratio has been decreased.
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (a)3, changed minimum points from "20" to "16"; in (e)1, (e)2, and (e)3, increased maximum loan amounts; in (e)4, substituted "payment to the borrower" for "inspection of the project"; in (h)5, added the last sentence; and in (h)6, inserted "(h)" preceding "1, 2 and 3 above" and added the last sentence.

Subchapter 5 WATER SUPPLY REPLACEMENT PROJECTS (TYPE A LOANS AND TYPE B LOANS)

N.J. Admin. Code § 7:1A-5.1 Eligibility and criteria (Type A and B loans)

(a) Any local unit which has received notification from the Water Supply Element of the Department that groundwater supply contamination problems exist within its jurisdiction which adversely affect the potable water service of at least three dwelling units is eligible for a Type A loan, provided it satisfactorily completes the loan application, meets the eligibility criteria set forth in this subchapter, receives the minimum priority score and ranks high enough on the priority list (as applicable) to be funded. The above requirements shall also apply to any municipality, municipally owned public water system or privately owned public water system seeking a Type B loan. To receive a Type A or Type B loan the project shall meet the following criteria to the satisfaction of the Department:

1. The minimum priority score set out in N.J.A.C. 7:1A-5.2 below.

2. The project shall be designed to relieve the impact caused by contaminated groundwater on existing publicly owned or individually owned residential water supplies.

3. For the purpose of determining a project area, the following criteria shall be considered by the Department:

i. Extent of pollution;

ii. Area of potential migration; and

iii. Aquifer vulnerability.

4. The maximum loan amount for any one project shall be $ 3,000,000. In awarding a water supply loan, the Department may consider project expense and the degree of environmental impact which the project may have. Any applicant may be eligible to apply for one loan in any application period.

5. The project shall not be excessively expensive or cause unacceptably high environmental damage. The maximum loan amount for any one project shall be $ 3,000,000.

6. The project shall not conflict with any other State project nor enforcement proceedings.

7. The application must be accompanied by adequate explanation of how the applicant plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan and the steps it plans to take before receiving the loan that will guarantee that at the time of the signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project. The applicant must comply with all standard loan provisions of the State of New Jersey.

8. The application documents shall clearly state and document how the loan will accomplish the goal set out in the application.

9. In cases where the project costs exceed the $ 3,000,000 maximum loan amount the application must be accompanied by a detailed financial assessment indicating how the applicant will finance and repay the entire project costs.

(b) A public meeting shall be held and pertinent project information disseminated to the public. The applicant shall be responsible for holding this meeting.

(c) The applicant shall be required to pass or to obtain from the local unit or municipality in which the applicant is located a mandatory connection ordinance prior to issuance of the loan award agreement by the Department. The applicant shall be required to pass or to obtain from the local unit or municipality in which the applicant is located a mandatory well sealing ordinance when in the judgment of the Department such well sealings are necessary to prevent additional migration of contaminants or the potential exists for additional contamination from wells which remain unused and not sealed.

(d) In the event a borrower has received approval for a grant, claim, payment, award or other loans from the State for the same project funded pursuant to this chapter, said payment shall be directly credited towards pre-payment of any outstanding principal and interest of the loan to the extent of payment received. As applicable, the outstanding principal and interest on the water supply loan shall be reduced to the amount received from the borrower and a revised repayment schedule shall be issued by the Department for the remaining maturity period of the loan.

(e) In the event a borrower receives a grant, claim, payment, award, loan or any form of payment from any government agency or receives payment for damages relating to the same project funded pursuant to this chapter, the borrower shall pre-pay, within 30 days of receipt of such grant, claim, award, loan, payment or damage payment, any outstanding principal and interest of the loan to the extent of payment received. As applicable, the outstanding principal and interest on the water supply loan shall be reduced to the amount received from the borrower and a revised payment schedule shall be issued by the Department for the remaining maturity period of the loan.

History

• Adopted concurrent proposal, R.1988 d.574, effective 11/18/1988.
• See: 20 New Jersey Register 2470(a), 20 New Jersey Register 3129(a).
• Provisions of emergency amendment R.1988 d.479 readopted with $ 3,000.00 changed to $ 3,000,000 in 5.1.
• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Modified to require the applicant, and not the Department, to hold a public meeting on a water supply loan application.

N.J. Admin. Code § 7:1A-5.2 Priority determination (Type A and B loans)

(a) Each project shall be assigned priority points in accordance with the provisions outlined in this section. A project shall be ranked by the number of priority points it receives, with those projects scoring the higher points preferred for funding. No project shall be assigned priority points until the project area has been defined to the satisfaction of the Department; the most cost-effective water supply replacement project, project scope, and cost have been identified; and complete priority information has been submitted.

(b) In order to be considered for funding, a project shall receive a minimum score of 50 priority points. Projects which receive a minimum score of 130 points will be considered "exigent" and will be processed for funding and the remainder of the competitive priority ranking provisions shall be waived except as noted in N.J.A.C. 7:1A-5.2(c). Upon determination that a project is exigent and sufficient funds are available, the Department shall notify the applicant of eligibility for project funding.

(c) In cases where a project classified "exigent" has been issued a notification of eligibility and processed for award but a notice of intent has not been issued and another project application is received and determined to have higher priority, and sufficient funds are not available to fund all priority ranked "exigent" projects, the project of higher exigency will commence processing for funding. In cases where a project attains "exigent" standing but sufficient loan funds are not available to cover the full requested project costs, the Department may by-pass the project to fund another "exigent" status project for which sufficient funds are available. Exigent projects for which sufficient funds are not available shall be withheld and immediately ranked and processed upon availability of funds.

(d) Projects which receive the minimum priority score but do not obtain "exigent" status will be held for the next competitive ranking determination. This determination will be made twice yearly, on January 2 and July 5, respectively, or the first working day thereafter unless extended as provided by N.J.A.C. 7:1A-2.4. Upon completion of the above semi-annual ranking and upon a determination that sufficient funds are available for a non-exigent project, the Department shall notify the applicant of eligibility of the project for funding. In such cases, if a Notice of Intent to Award has not been issued and a project determined to be of higher priority is received and sufficient loan funds are not available to cover all requested project costs, the Department may by-pass the project to fund another non-exigent project for which sufficient funds are available. In such cases where sufficient funds are not available to fund a non-exigent project either upon completion of the semi-annual priority ranking or upon withholding of the project due to receipt of an exigent project, the non-exigent project shall be withheld until the next semi-annual priority ranking.

(e) Any appropriation not committed by a notice of intent to award, or released by a recalled Notice of Intent to Award, or by failure of applicant to execute loan documents within the prescribed period, or through termination of the project shall be carried over and added to the next application period.

(f) Priority points for water supply replacement projects to address nonpublic wells with contamination problems shall be awarded based on the three factors of severity, public hardship, and population served, as indicated below:

1. The total number of dwelling units that will be serviced with potable water by the project will be calculated. The percentage of all dwelling units tested as part of a sampling program approved by the Department that have confirmed levels of contaminants in excess of the maximum contaminant level (M.C.L.) will be calculated. The percentage of all dwelling units tested as a part of a sampling program approved by the Department that have confirmed levels of contaminants above twice the M.C.L. value will also be calculated.

i. The percentage of all dwelling units to be serviced that at present are not above M.C.L. standards but can reasonably be expected to exceed that standard through continued contaminant movement, will be calculated. These three calculated percentages will be summed and the numerical value of the total will be equal to the points awarded for severity.

ii. The Federal or State standard for contaminants, whichever is lower, shall apply.

iii. For contaminants not included in the primary drinking water regulations or in (f)1.ii above, the Department may, at its discretion, set a standard for the purposes of this chapter based upon a finding that said standard is necessary for the protection of the public health. That standard shall be incorporated into applicable Departmental rules pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., as soon as practicable.

2. In considering financial hardship, project costs and the relative income levels of those affected will be considered.

i. The total construction cost of the project shall be estimated as near as practicable. A full project cost shall be calculated as 120% of this estimate. This full project cost will be assumed to be financed over a nineteen year period at an interest rate to be determined by the Department. A yearly operation and maintenance (O & M) cost will be estimated. A yearly cost per service will be calculated based upon the sum of O & M and amortization of full project costs.

ii. The State Median Family Income Level and Median Family Income Level as reported in the latest census for the applicant shall be determined.

iii. A point system reflecting the degree of hardship will be used according to the following schedule:

| Project Costs: | 0-$ 200/yr/service: | 0 pts. | | --- | --- | --- | | $ 201-$ 300/yr/service: | 15 pts. | | | $ 301-$ 400/yr/service: | 30 pts. | | | $ 401-$ 500/yr/service: | 45 pts. | | | over-$ 501/yr/service: | 60 pts. | |

| Median Family Income Level (M.F.I.L.) | | | --- | --- | | For a municipal M.F.I.L. at or greater than the State | 0 pts. | | M.F.I.L. | | | For a municipal M.F.I.L. between the State M.F.I.L. and 20 | 20 pts. | | percent below the State M.F.I.L. | | | For a municipal M.F.I.L. at or greater than 20 percent | 40 pts. | | below the State M.F.I.L. | |

iv. The total priority points awarded for the financial burden will be the sum of points awarded for project costs plus those awarded for the Median Family Income Levels.

3. Points will be awarded for population served based upon the following schedule:

For a project serving less than 50 people: 0 pts.

For a project serving less than 100 people but more than 49 people: 10 pts.

For a project serving 100 or more people: 20 pts.

(g) Priority points to address contamination problems related to publicly owned wells shall be awarded based on the three factors of severity, public hardship and population served, as indicated below:

1. Subject to a wellfield sampling program approved by the Department, the following shall address severity:

i. The rated well pump capacity tested and found to be greater than the maximum contaminant level divided by the total rated system capacity (including wells, surface water, and bulk purchase interconnections) multiplied by 100.

ii. The rated well pump capacity tested and found to be greater than two times the maximum contaminant level divided by the total rated system capacity (including wells, surface water, and bulk purchase interconnections) multiplied by 100.

iii. The rated well pump capacity that may be affected in the future divided by the total rated system capacity (including wells, surface water, and bulk purchase interconnections) multiplied by 100.

iv. The above three calculated percentages will be summed and the numerical value of the total will be equal to points awarded for severity.

v. The Federal or State standard for contaminants, whichever is lower, shall apply.

vi. For contaminants not included in the primary drinking water rules, the Department may, at its discretion, set a standard for the purposes of these rules based upon a finding that said standard is necessary for the protection of the public health. That standard shall be incorporated into applicable Departmental rules pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., as soon as practicable.

2. In considering financial hardship, project costs and the relative income levels of those affected will be considered.

i. The total construction cost of the project shall be estimated as near as practicable. A full project cost shall be calculated as 120 percent of this estimate. This full project cost will be assumed to be financed over a 19 year period at an interest rate to be determined by the Department. A yearly operation and maintenance (O & M) cost for the project will be estimated. An annual incremental cost per affected service will be calculated based upon the sum of O & M and amortization of full project costs.

ii. The State Median Family Income Level and Median Family Income Level as reported in the latest census for the applicant shall be determined.

iii. A point system reflecting the degree of hardship will be used according to the following schedule:

| Incremental annual project cost per affected service: | | --- |

| 0-$ 25/yr: | 0 pts. | | --- | --- | | $ 26-$ 75/yr: | 15 pts. | | $ 76-$ 125/yr: | 30 pts. | | $ 126-$ 175/yr: | 45 pts. | | Over $ 175/yr: | 60 pts. |

Affected services = Total Services x (present rated well pump capacity of wells presently contaminated plus wells anticipated to be contaminated, as estimated by the Department) divided by present rated system capacity (including wells, surface water, and bulk purchase interconnections).

Median Family Income Levels (M.F.I.L.)

| For a municipal M.F.I.L. at or greater than the State M.F.I.L. | 0 pts. | | --- | --- | | For a municipal M.F.I.L. between the State M.F.I.L. and 20 | 20 pts. | | percent below the State M.F.I.L. | | | For a municipal M.F.I.L. at or greater than 20 percent below the | 40 pts. | | State M.F.I.L. | |

iv. The total priority points awarded for the financial burden will be the sum of points awarded for project costs plus those awarded for Median Family Income Levels.

3. Points will be awarded for population served based upon the following schedule:

| For a project serving less than 50 people | 0 pts. | | --- | --- | | For a project serving less than 100 people but more than | 10 pts. | | 49 people | | | For a project serving 100 or more people | 20 pts. |

(h) For ranking purposes the total priority score shall be the sum of points awarded for each of the three categories at N.J.A.C. 7:1A-5.2(f) or (g) as applicable. In the event of a tie, the applicants shall be ranked in the order of receipt of the loan application by the Department.

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• The denomination in the priority point ranking system ratios for severity and affected services have been altered to account for additional sources of water supply, that is, wells, surface water, and bulk purchase interconnections, that may be components of an applicant's water supply system.
• Administrative correction to (g)2iii.
• See: 24 New Jersey Register 4368(a).
• Amended by R.1997 d.223, effective 5/19/1997.
• See: 29 New Jersey Register 7(a), 29 New Jersey Register 2268(a).
• In (b), substituted "a project shall" for "a project must" and changed priority points from "100" to "50" and from "180" to "130"; in (f)1, substituted "percentage of all dwelling units" for "percentage of these dwelling units" and deleted "at or" preceding both "in excess of" and "above twice the M.C.L."; and in (h), added the last sentence.

Subchapter 6 EMERGENCY INTERIM REHABILITATION LOAN PROCEDURES

N.J. Admin. Code § 7:1A-6.1 Scope and construction rules

(a) The following shall constitute the rules governing the issuance by the Department of Emergency Interim Rehabilitation Loans to publicly owned water supply facilities for the purpose of interim rehabilitation and repair of critical water supply service disruptions pursuant to the Water Supply Bond Act of 1981, P.L. 1981, c.261, Section 5. The following provisions of N.J.A.C. 7:1A-1 and 2 shall also apply to the emergency interim rehabilitation loan procedures set forth in this subchapter: N.J.A.C. 7:1A-1.3, 1.4, 1.5, 1.7, 2.2, 2.6, 2.10, 2.11, and 2.14 through 2.35 inclusive. The emergency loan applicant shall be exempt from all provisions of N.J.A.C. 7:1A-1 and 2 unless specifically set forth above.

(b) These rules shall be strictly construed to permit the Department to effectuate the purpose of the rehabilitation loan program set forth in N.J.A.C. 7:1A-1 and 2.

N.J. Admin. Code § 7:1A-6.2 Definition

For the purpose of this subchapter, the following definitions, in addition to those found in N.J.A.C. 7:1A-2.2, are applicable.

"Critical water supply service disruption" means the total loss of the public potable water supply served by the emergency loan applicant to at least 25,000 residents or 50 percent of the residents within the emergency loan applicant's service area which lasts for at least a 24 hour period.

"Emergency interim rehabilitation loan" means a loan issued pursuant to N.J.A.C. 7:1A-3.

"Emergency loan applicant" means any political subdivision of the State or agency thereof that applies for an emergency interim rehabilitation loan pursuant to N.J.A.C. 7:1A-3.

N.J. Admin. Code § 7:1A-6.3 Application procedures

(a) To apply for an emergency interim rehabilitation loan, an emergency loan applicant shall comply with all the pertinent requirements of this section. The application shall be submitted to the Department on forms provided for that purpose.

(b) An emergency loan applicant for an emergency interim rehabilitation loan shall submit to the Department within 60 days of the critical water supply service disruption documented information fulfilling all the following criteria to the satisfaction of the Department.

1. Establish that a critical water supply service disruption occurred within the previous 60 days to the emergency loan applicant's water supply system;

2. Establish that the emergency loan applicant made good faith and diligent efforts to repair the cause of the critical water supply service disruption, especially within the initial 24 hour period;

3. Establish that no alternate source of water supply through interconnections or other devices could be utilized to replace any significant portion of the water supply rendered unavailable due to the water supply system malfunction or other incident that caused the critical water supply service disruption;

4. Establish that an imminent probability exists that another critical water supply service disruption may occur to the emergency loan applicant's water supply system within 12 months after the last critical water supply service disruption or a critical water supply service disruption currently exists due to the age and antiquity of the emergency loan applicant's water supply system;

5. Establish that the emergency loan applicant needs financial assistance to terminate the critical water supply service disruption or avoid a recurrence thereof;

6. Establish that the need for the rehabilitation of one or more components of the emergency loan applicant's transmission facilities, as defined at N.J.A.C. 7:1A-2.2, caused the critical water supply service disruption;

Establish that the critical water supply service disruption shall not have occurred due to any intentional acts or omissions of the emergency loan applicant or any of its employees;

8. Establish the cost for the actual repair of the critical water supply service disruption, excluding administrative costs for regular personnel and costs normally funded from regular sources;

9. Establish that the emergency loan applicant has a plan to repay the loan and pay any other expenses necessary to fully complete and implement the emergency project; and establish the steps being taken to implement the plan that will guarantee that at the time of signing of the emergency interim rehabilitation loan award document the emergency loan applicant will be irrevocably committed to repay the loan and any other expenses necessary to fully complete and implement the emergency project; and

10. Provide all other information and documentation deemed necessary by the Department for the complete evaluation of the emergency loan applicant's application.

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Division changed to Department.

N.J. Admin. Code § 7:1A-6.4 Department approval/disapproval

(a) After a full review and evaluation of an application, the Department shall take one of the following actions:

1. Approve the emergency interim rehabilitation loan; or

2. Disapprove the application.

(b) The emergency loan applicant shall be promptly notified in writing of any approval or disapproval.

(c) Any disputes arising from the Department's decision shall be subject to the provisions of N.J.A.C. 7:1A-2.35.

N.J. Admin. Code § 7:1A-6.5 Amount and terms of emergency interim rehabilitation loan

(a) The amount of the emergency interim rehabilitation loan shall be determined by the Department based upon allowable costs as set forth in the applicable sections of N.J.A.C. 7:1A-1, 2 and 3, but shall not exceed a maximum total of $ 300,000.

(b) The amount of the emergency interim rehabilitation loan shall not be included in the calculations for the maximum loan amount for any subsequent water supply rehabilitation loan awarded pursuant to N.J.A.C. 7:1A-1 and 2.

(c) The emergency interim rehabilitation loan shall be repaid within one year of the date or dates funds are disbursed, either through application of the proceeds of loan funds pursuant to N.J.A.C. 7:1A-1, 2 and 3 or from other sources, including external borrowings.

(d) Interest on the emergency interim rehabilitation loan shall accrue from the date or dates funds are disbursed and be computed at the annual rate of 80 percent of the average of the 52 week high and low of the Bond Buyer's 20-bond index as of the time the funds are disbursed and shall be payable at the end of one year from the date of disbursement or upon repayment of the emergency interim rehabilitation loan or any portion thereof.

(e) A rate schedule setting forth the amount charged for the sale of water by the borrower shall be established. A percentage of these receipts, as stipulated by the loan award document, shall be dedicated to a specific fund for the purpose of assuring the repayment of the loan by the borrower. The Department may require additional collateral to secure the loan when deemed necessary.

(f) Any funds from repayment of the principal of emergency interim rehabilitation loans shall be repaid into the Water Supply Fund created pursuant to the Act and shall remain available for further disbursements as new loans to be awarded pursuant to N.J.A.C. 7:1A-1, 2 and 3.

(g) Any purchase, contract or agreement under an emergency interim rehabilitation loan may be made, negotiated or awarded without public advertising for bids provided that such purchase, contract or agreement qualify for an exemption pursuant to the "Emergency purchases and contracts" section of the local Public Contracts Law, N.J.S.A. 40A:11-6.

N.J. Admin. Code § 7:1A-6.6 Required application for water supply bond rehabilitation loan

(a) All emergency interim rehabilitation loans shall be issued by the Department contingent upon the emergency loan applicant applying for a water supply bond rehabilitation loan pursuant to N.J.A.C. 7:1A-1 and 2 by the next annual application deadline date to remedy the problem which caused the critical water supply service disruption.

(b) Failure to comply with (a) above shall constitute good cause for the purpose of terminating the emergency interim rehabilitation loan pursuant to N.J.A.C. 7:1A-2.33.

N.J. Admin. Code § 7:1A-6.7 Design specifications

(a) All efforts by the emergency loan applicant to repair the cause of the critical water supply service disruption shall comply with the Standards for Construction of Public Community Water System, N.J.A.C. 7:10-11, and the Standards for the Construction of Public Non-Community and Non-Public Community Water Systems, N.J.A.C. 7:10-12, as relevant to the repair of the cause of critical water supply service disruption.

(b) If the Department determines that a permit pursuant to the regulations set forth in (a) above is required for the work to be undertaken to repair the cause of the critical water supply service disruption, the emergency loan applicant shall obtain said permit as soon as possible, but within six months after receipt of notice of the need for said permit from the Department.

Subchapter 7 WATER SUPPLY REPLACEMENT PROJECTS (TYPE B LOANS OR TYPE C LOANS)

N.J. Admin. Code § 7:1A-7.1 Water Supply Replacement Trust Fund

(a) Funds appropriated to the Department from acts other than the Water Supply Bond Act of 1981, P.L. 1981, c.261, as amended, or other bond acts, for the purpose of providing loans for alternative water supplies when contamination problems exist shall be deposited in the Water Supply Replacement Trust Fund. The funds in the Water Supply Replacement Trust Fund are specifically dedicated for the purpose of making Type B and Type C Loans to municipalities, municipally owned public water systems, or privately owned public water systems to plan, design and construct projects to address contamination problems as identified by the Department pursuant to this chapter.

(b) The purpose of Type C Loans is to quickly address particularly urgent projects previously recognized by legislative action. Accordingly, not over eight million dollars of the total amount appropriated for funding from sources other than from the Water Supply Bond Act of 1981 will be available for Type C Loans, the remainder being available for Type B Loans and associated costs.

(c) Funds saved from planning and constructing projects whose actual eligible implementation costs are less than the awarded estimated eligible costs shall be retained by the State and deposited in the Water Supply Replacement Trust Fund to be applied to new water supply replacement projects pursuant to this chapter.

(d) Repayment of principal and interest on loans issued from the Water Supply Replacement Trust Fund shall be made to the State of New Jersey as set forth in the loan award document and shall be redeposited in the Water Supply Replacement Trust Fund to be made available for further disbursements as new loans to be awarded pursuant to this chapter.

(e) If a project utilizes point of entry treatment devices on other than a temporary basis, provisions shall be included to assure adequate future inspection and maintenance of such devices, and to minimize liability to the State. Such provisions shall be subject to approval by the Department.

(f) Where the area of actual or anticipated contamination extends beyond the limits of a single municipality, the applicant shall develop a single plan covering the entire area, on the basis of which the optimum plan shall be prepared, covering the entire area. Municipalities shall enter into an agreement for the joint administration of planning and/or design and construction to the extent feasible. Such agreement shall be subject to approval by the Department, and shall at a minimum, prescribe arrangements for the procurement, contracting and payment of joint debt and construction services as well as designate the applicant to administer the planning, design and construction of the entire project.

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Reference added to privately owned public water system.

N.J. Admin. Code § 7:1A-7.2 Amount and terms of loan

(a) Funds made available for Type B and Type C Loans under this subchapter shall be subject to the following conditions:

1. Such loans shall bear interest at a rate fixed by the Department of the Treasury, and shall not exceed the rate of two percent per annum. Under hardship circumstances, subject to approval by the Department of Treasury, loans may be given at interest rates below two percent, based on the percentage of the municipality's median family income level required to plan, design, construct and operate the project.

2. The loan maturity period for all Type B and C Loans issued from the Water Supply Replacement Trust Fund shall be for a period of not more than 20 years from the date disbursement of loan funds to the borrower begins. Principal and accrued interest may be prepaid by the borrower prior to the end of the loan maturity period without penalty.

3. Unless otherwise specified by the Department of the Treasury, the amortization date for all Type B and C Loans issued from the Water Supply Replacement Trust Fund shall be 90 days after the final disbursement of loan funds to the borrower. Accrued interest on all disbursements made prior to the amortization date may be capitalized as part of the principal amount of the loan. The borrower shall make equal semi-annual debt service payments to the State commencing six months after the amortization date. Debt service schedules providing for pre-payment of accrued interest and/or declining debt service payments may be approved at the discretion of the Department. However, subject to approval by the Department of the Treasury, annual or semi-annual debt service payments by any utility authority, as borrower, shall become due as specified in the Loan Repayment Schedule and any amendments thereto.

4. For all borrowers, sufficient funds shall be deposited in a specific fund for the purpose of assuring timely repayment of the loan by the borrower.

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Stylistic changes only.

N.J. Admin. Code § 7:1A-7.3 Eligibility and criteria (Type B Loans)

For Type B Funding, any municipality, municipally owned public water system or privately owned public water system, including subdivisions or agencies thereof, may be eligible to apply for one loan in any application period. The maximum loan amount awarded to any municipality, municipally owned public water system or privately owned public water system under any application for Type B Funding shall be $ 3,000,000. Eligibility and criteria for Type B Funding shall be as set forth at N.J.A.C. 7:1A-5.1(a) through (e).

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• Added reference to privately owned public water system.

N.J. Admin. Code § 7:1A-7.4 Priority determination (Type B and C Loans)

(a) Priority ranking for Type B Loans shall be as set forth at N.J.A.C. 7:1A-5.2(a) through (h).

(b) For Type C Funding, a municipality having residences with contaminated wells as defined in this chapter may make application for and receive one award for a maximum of $ 8,000,000 subject to meeting the following criteria to the satisfaction of the Department.

1. The municipality shall have received notification from the Water Supply Element of the Department that groundwater contamination problems exist within its jurisdiction which adversely affect the potable water service.

2. The project shall be designed to relieve the impact caused by contaminated groundwater on existing individually owned residential water supplies. For the purpose of determining a project area, the following criteria shall be considered by the Department:

i. Extent of pollution;

ii. Area of potential migration; and

iii. Aquifer vulnerability.

3. In awarding a water supply loan, the Department may consider project expense and the degree of environmental impact which the project may have.

4. The project shall not conflict with any other State project nor enforcement proceedings.

5. The application shall be accompanied by adequate explanation of how the municipality plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan and the steps it plans to take before receiving the loan that will guarantee that at the time of the signing of the loan award document it will be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project. The municipality must comply with all standard loan provisions of the State of New Jersey.

6. The application shall be completed to the satisfaction of the Department and shall state and document how the loan will accomplish the goal set out in the application.

7. The municipality shall have a contiguous residential area containing more than 1,500 residential units that has been found by the local department of health, or board of health, and the county board of health, or department of health, to have at least 25 percent of the wells supplying potable water to the area with contaminants in excess of the maximum contaminant levels to be adopted by the Department pursuant to the Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq., as applicable.

8. The potable water supply for the residential area shall have been deemed by the county board of health or department of health to be unfit for human consumption, and the governing body of the municipality shall have adopted a resolution banning new construction in the area pending connection of the area to a public water supply system; or the Department shall have determined that all or a portion of the ground water serving the residential area to be a well-restriction area.

9. The municipality shall certify to the Department the estimated costs for extending a public water supply system to an eligible residential area that satisfies the criteria of this section.

10. In cases where the project costs exceed the $ 8,000,000 maximum loan amount, the application shall be accompanied by a detailed financial assessment indicating how the applicant will finance and repay the entire project costs.

11. Compliance with other criteria as set forth at N.J.A.C. 7:1A-5.1(c) through (e).

12. Monies from a Type C loan made hereunder are to be expended solely for the purpose of expanding the public water supply system to residences with contaminated wells as defined in this chapter.

History

• Amended by R.1992 d.252, effective 6/15/1992.
• See: 24 New Jersey Register 707(a), 24 New Jersey Register 2245(a).
• "Applicant" changed to "municipality".

Subchapter 8 WATER SUPPLY TREATMENT PROJECTS

N.J. Admin. Code § 7:1A-8.1 Eligibility and criteria

(a) Any local unit operating a water supply facility which lacks treatment facilities or which includes treatment facilities that are in need of improvement, rehabilitation or repair, is eligible for a loan in any application period where it satisfactorily completes the loan application process in a timely manner, meets the eligibility criteria set forth in this subchapter, receives the minimum priority score, and ranks high enough on the priority list to be funded. To receive a loan the project shall meet the following criteria to the satisfaction of the Department:

1. The minimum priority score set out in N.J.A.C. 7:1A-8.2;

2. The project shall be an independent and complete water supply project. An independent and complete project is one which by its implementation alone will render the specified portion(s) of the system adequate and efficient and will accomplish the purpose set forth in the application;

3. The project shall not be excessively expense or cause unacceptably high environmental damage;

4. The project shall not conflict with any other State projects or with the recommendations of the New Jersey Statewide Water Supply Plan;

5. The application shall be accompanied by adequate explanation of how the local unit plans to repay the loan and pay any other expenses necessary to fully complete and implement the project, the steps it has taken to implement this plan and the steps it plans to take before receiving the loan that shall guarantee that at the time of the signing of the loan award document it shall be irrevocably committed to repay the loan and pay any other expenses necessary to fully complete and implement the project. The local unit shall comply with all standard loan provisions of the State of New Jersey;

6. A project for new treatment facilities is only eligible when there are violations or noncompliance with safe drinking water standards or treatment requirements set by the Act. New treatment facilities solely for capacity increase are not loan eligible; and

7. The application documents shall clearly state and document how the loan shall accomplish the goal set out in the application.

Chapter 1B WAIVER OF DEPARTMENT RULES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1B-1.1 Purpose and applicability

(a) The purpose of this chapter is to set forth the limited circumstances in which the Department may, in its discretion, waive the strict compliance with any of its rules in a manner consistent with the core missions of the Department to maintain, protect, and enhance New Jersey's natural resources and to protect the public health, safety, and welfare, and the environment.

(b) It is not the purpose of this chapter to allow for the routine circumvention of any Department rule.

(c) This chapter does not preclude the availability of any rule concerning an exception, variance, waiver, or emergency authorization pursuant to any other chapter in Title 7 of the New Jersey Administrative Code.

(d) This chapter does not create in any person a right to a waiver.

(e) This chapter does not authorize any other entity to approve a waiver.

N.J. Admin. Code § 7:1B-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Conflicting rules" means a situation in which two or more Department rules, or a Department rule and the rule of another State agency or a Federal agency, conflict so as to make compliance with both rules impossible or impracticable.

"Department" means the New Jersey Department of Environmental Protection.

"Net environmental benefit" means a situation in which the quantitative or qualitative benefit to a natural resource or other related environmental good for which the Department has responsibility would substantially outweigh any detriment to that natural resource or environmental good, which would result from a waiver. There must be an adequate geographic and resource nexus between the environmental offset and the natural resource or other environmental good that is protected by the rule being waived. The net environmental benefit may include mitigation, but it must be beyond what the waived rule would have required independent of the waiver.

"Public emergency" means a situation in which a Federal or State official with the authority to do so declares a public emergency.

"Unduly burdensome" means a situation in which the strict compliance with a specific Department rule would result in either:

1. Actual, exceptional hardship for a particular project or activity, or property; or

2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

"Waiver" means a decision by the Department pursuant to this chapter that relaxes strict compliance with a specific Department rule, in whole or part, as applied to a specific person, project or activity, or property, on the basis of the particular circumstances of that person, project or activity, or property.

N.J. Admin. Code § 7:1B-1.3 Severability

A finding by a court of competent jurisdiction that any section, subsection, provision, clause, or portion of this chapter is invalid or unconstitutional shall not affect the remainder of the chapter.

Subchapter 2 WAIVER

N.J. Admin. Code § 7:1B-2.1 Basis for a waiver

(a) Except as provided in (b) below, the Department may, in accordance with this chapter, prospectively waive the strict compliance with any of its rules only when it determines that at least one of the following exists and all other requirements of this chapter are met:

1. Conflicting rules;

2. The strict compliance with the rule would be unduly burdensome;

3. A net environmental benefit; or

4. A public emergency.

(b) The Department shall not under this chapter waive:

1. A requirement of, or duty imposed by, a Federal or State statute or Federal regulation, unless that statute or regulation provides for such a waiver;

2. A rule providing for a Federally delegated, authorized, or assumed program where the waiver would not be consistent with New Jersey's delegation, authorization, or assumption of authority pursuant to a Federal program;

3. A rule that implements a Federally enforceable program pursuant to a State Implementation Plan (SIP), as defined at N.J.A.C. 7:27-18.1;

4. A rule that is part of a collaborative program involving multiple states or jurisdictions where the waiver would not be consistent with New Jersey's participation in the multi-state or multi-jurisdiction program;

5. A rule concerning the air emissions trading program;

6. A rule providing for a numeric or narrative standard protective of human health;

7. A rule concerning the designation of rare, threatened, or endangered status of any species of flora or fauna, or habitat for such species;

8. A rule providing for a remediation funding source, claim or other reimbursement, grant, loan, or other financial assistance;

9. A rule providing for a license, certification, or registration for a vehicle, boat, individual, or business;

10. A rule providing for a license or approval for hunting, fishing, or trapping;

11. A rule providing for public participation or notice;

12. A rule providing for a fee, oversight cost, or other Department cost; or

13. Any provision of this chapter.

N.J. Admin. Code § 7:1B-2.2 Waiver evaluation criteria

(a) The Department shall consider the extent to which the following criteria support a waiver of the strict compliance with a rule in accordance with this chapter:

1. The public has had sufficient notice of the waiver in accordance with applicable rules;

2. The Department has been provided with information and data sufficient to support a waiver;

3. There are circumstances that support the need for a waiver;

4. The person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome;

5. There is a net environmental benefit, including the consideration, when appropriate, of the impact of the waiver on the remediation and redevelopment of a contaminated site, or on the expansion of an existing development;

6. The waiver would be consistent with the Department's core missions to maintain, protect, and enhance New Jersey's natural resources and to protect public health, safety, and welfare, and the environment; and

7. The waiver would result in a reasonable and effective response to a public emergency.

N.J. Admin. Code § 7:1B-2.3 Notice of the waiver

(a) Any person requesting a waiver shall include notice of the waiver request in any public notice the person must provide in accordance with the public notice requirements of the rules from which waiver is requested.

(b) The Department shall publish notice of:

1. Its determination to consider a waiver; and

2. Its decision on each waiver.

(c) The Department shall publish the notice required under (b) above as follows:

1. In the DEP Bulletin, where the waiver relates to rules for which the Department publishes notice of permit decisions in the DEP Bulletin. The DEP Bulletin is posted on the Department's website at http://www.state.nj.us/dep/bulletin/; or

2. On the Department's website, http://www.state.nj.us/dep/, where the waiver relates to rules for which the Department does not publish notice of permit decisions in the DEP Bulletin.

N.J. Admin. Code § 7:1B-2.4 Rule waiver and limitations

(a) If the Department decides to approve or deny a waiver of strict compliance of any of its rules, it shall document its decision in writing to the person to whom the waiver applies, including:

1. The name and address of the person to whom the waiver applies;

2. The specific location to which the waiver applies;

3. The specific rule provision(s) to which the waiver applies;

4. The basis for its decision on the waiver;

5. The duration, scope, and extent of the waiver;

6. Any conditions on the waiver necessary to maintain, protect, and enhance New Jersey's natural resources and to protect the public health, safety, and welfare, and the environment, including, but not limited to:

i. Monitoring of the environmental impacts of the project or activity approved as part of the waiver;

ii. Reporting of any environmental impacts of the project or activity approved as part of the waiver; and

iii. Implementation of environmental offsets, if applicable, to ensure that the waiver would result in a net environmental benefit;

7. An explanation, if applicable, that the procedural rules applicable to a permit authorization being issued concerning duration, modification, renewal, revocability, and transfer apply to the waiver;

8. Notice that the Department may revoke the waiver for noncompliance with any condition in the waiver, or for the submission of false or inaccurate information; and

9. Notice that the person to whom the waiver applies shall be subject to enforcement for noncompliance with any condition in the waiver.

(b) The Department's waiver of the strict compliance with one of its rules shall:

1. Be considered a waiver only of the application of the particular rule provision that the Department identifies in its waiver decision issued under (a) above;

2. Not constitute a waiver of the rule generally or any other provision of any other rule not specified in the waiver;

Not constitute an approval of any other project or activity, whether at the location that is the subject of the waiver or another location;

4. Be valid only as to the person identified in the waiver or the particular project or activity, or location that is the subject of the waiver, except as the applicable program-specific rules provide;

5. Not be automatically renewable, except as the waiver or applicable program-specific rules provide;

6. Not constitute a defense to a judicial or administrative enforcement action for a violation that predates the waiver; and

7. Not justify or otherwise excuse prior violations, but may be used to resolve contested cases or other disputes.

Chapter 1C ENVIRONMENTAL JUSTICE

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1C-1.1 Scope

This chapter shall constitute the rules of the Department to address the review and analysis of contributions to environmental and public health stressors by facilities in overburdened communities pursuant to N.J.S.A. 13:1D-157 et seq.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-1.2 Construction

This chapter shall be liberally construed to effectuate the statutory function, intent, and purposes of N.J.S.A. 13:1D-157.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-1.3 Purpose

(a) This chapter is promulgated for the following purposes:

1. Ensure meaningful public participation in the Department's analysis of environmental and public health stressors in overburdened communities and a facility's contributions thereto;

2. Limit the placement of new facilities that would create a disproportionate impact by causing or contributing to adverse cumulative stressors in an overburdened community; and

3. Reduce environmental and public health stressors in overburdened communities in the permitting of new, expanded, and existing major source facilities by requiring incorporation of measures to avoid, minimize, and/or reduce facility contributions thereto.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-1.4 Relationship to other regulatory programs

(a) Compliance with any subchapter of this chapter shall not relieve any person of the obligation to comply with all other applicable Federal, State, or local laws, rules, regulations, codes, or ordinances.

(b) In the event of a conflict between this chapter and another Department rule, this chapter shall supersede, except that this chapter shall not supersede any provision required to comply with Federal law.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-1.6 Severability

A finding by a court of competent jurisdiction that any section, subsection, provision, clause, or

portion of this chapter is invalid or unconstitutional shall not affect the remainder of the chapter. If any section, subsection, provision, clause, or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter shall not be affected thereby.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 2 APPLICABILITY AND PROCEDURES

N.J. Admin. Code § 7:1C-2.1 Applicability

(a) The requirements of this chapter apply when an applicant submits a permit application to the Department for a new or expanded facility, or the renewal of an existing major source permit, for a facility located or proposed to be located, in whole or in part, in an overburdened community, or to Solid Waste Management Plan actions as provided at N.J.A.C. 7:1C-4.4.

(b) The Department shall not consider complete for review any application for a permit for a new facility or for the expansion of an existing facility, or any application for the renewal of an existing facility's major source permit, if the facility is located, or proposed to be located, in whole or in part, in an overburdened community, before the permit applicant first obtains a decision in accordance with N.J.A.C. 7:1C-9.

(c) Any application complete for review prior to April 17, 2023, shall not be subject to the requirements set forth in this chapter.

(d) As of January 16, 2021, the Department has published on its website a list of overburdened communities utilizing data from the most recently published U.S. census. This information can be found at http://www.nj.gov/dep/ej/communities.html. At least every two years thereafter, the Department shall update the list utilizing the most recently published U.S. census data.

(e) Where an existing or proposed facility in a block group that has zero population is located immediately adjacent to an overburdened community, the existing or proposed facility shall be subject to the requirements of this chapter and shall utilize the highest combined stressor total of any immediately adjacent overburdened community for the purposes of this chapter. For the purposes of this section, immediately adjacent means may include those communities separated by a street, road, or right-of-way.

(f) Where an applicant is required to analyze the potential for a facility's contribution to create additional adverse environmental and public health stressors in an overburdened community, the applicant shall be required to address only those stressors identified as affected at the chapter Appendix.

(g) An applicant may request a determination of the applicability of this chapter to an application or potential application by providing the Department, in writing, the address of the existing or proposed facility and information necessary for the Department to determine whether the existing or proposed facility is subject to this chapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-2.2 Procedural overview

(a) Upon request, the Department shall provide to the applicant the initial screening information for the overburdened community required pursuant to N.J.A.C. 7:1C-2.3 identifying the environmental and public health stressors, the geographic point of comparison, any adverse environmental and public health stressors, and whether the overburdened community is subject to adverse cumulative stressors. Alternatively, the applicant that wishes to submit its EJIS with a permit application may obtain the required information itself pursuant to N.J.A.C. 7:1C-2.3(g).

(b) After obtaining the information set forth at (a) above, the applicant shall complete the EJIS, in accordance with N.J.A.C. 7:1C-3.

1. Where the overburdened community is not subject to adverse cumulative stressors and the applicant demonstrates, through an analysis of the facility's contributions to the existing environmental and public health stressors in the overburdened community identified as affected at the chapter Appendix, that the facility will avoid causing a disproportionate impact that would occur by creating adverse cumulative stressors as a result of the facility's contribution, only the information pursuant to N.J.A.C. 7:1C-3.2 will be required.

2. Where the facility cannot avoid a disproportionate impact that would occur by creating adverse cumulative stressors as a result of the facility's contribution, the applicant shall include information required pursuant to both N.J.A.C. 7:1C-3.2 and 3.3, including analyzing and proposing feasible measures to, as applicable, avoid or minimize contributions to environmental and public health stressors, provide a net environmental benefit and, where appropriate, demonstrate how the facility serves a compelling public interest in the overburdened community.

3. Where the overburdened community is subject to adverse cumulative stressors, the applicant shall include information required pursuant to both N.J.A.C. 7:1C-3.2 and 3.3.

4. An applicant that is required to provide the information pursuant to N.J.A.C. 7:1C-3.3 shall comply with the requirements pursuant to the following sections to determine whether the facility can, as applicable, first avoid a disproportionate impact or, where a disproportionate impact will occur, address its contributions to environmental and public health stressors in the overburdened community:

i. Applications for permits for proposed new facilities shall satisfy the requirements at N.J.A.C. 7:1C-5 and, as applicable, N.J.A.C. 7:1C-7.

ii. Applications for permits to expand existing facilities shall satisfy the requirements at N.J.A.C. 7:1C-6 and, as applicable, N.J.A.C. 7:1C-7.

iii. Applications for renewals of existing major source permits shall satisfy the requirements at N.J.A.C. 7:1C-8.

(c) The applicant shall provide the EJIS to the Department for administrative review and, upon the Department's authorization to proceed as required pursuant to N.J.A.C. 7:1C-3.4, complete the process for meaningful public participation pursuant to N.J.A.C. 7:1C-4.

(d) Following the completion of the public participation process at N.J.A.C. 7:1C-4, the Department shall consider the EJIS, and any supplemental information, testimony, written comments, the applicant's response to comments, and any other information deemed relevant by the Department to determine whether the facility can avoid a disproportionate impact, determine whether to deny or approve the application, and evaluate whether and how to impose conditions concerning the construction and operation of the facility to address its contributions to environmental and public health stressors affecting the overburdened community and issue a decision, in accordance with N.J.A.C. 7:1C-9.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-2.3 Initial screening information

(a) Upon request, the Department shall provide to the applicant the initial screening information provided in this section and a statement of applicability.

(b) Environmental and Public Health Stressors/Geographic Point of Comparison: The Department shall provide a listing of the existing environmental and public health stressors in the overburdened community as set forth at the chapter Appendix and indicate the appropriate geographic point of comparison for each stressor by selecting the lower of the 50th percentile of the State or county's equivalent stressor, excluding other overburdened communities from the comparison.

(c) Adverse Environmental and Public Health Stressors: The Department shall indicate which environmental and public health stressors are considered adverse by comparing the value of each stressor in the overburdened community with the appropriate geographic point of comparison.

(d) Combined Stressor Total: The Department shall sum the number of adverse environmental and public health stressors in the overburdened community to determine the combined stressor total. The Department shall also indicate the appropriate geographic point of comparison for the combined stressor total by selecting the lower of the 50th percentile of the State or county's combined stressor totals excluding the combined stressor totals of other overburdened communities from the comparison.

(e) Cumulative stressors: The Department shall determine whether the overburdened community is subject to stressors by comparing the combined stressor total to the appropriate geographic point of comparison. If the facility is located, or proposed to be located, in whole or in part, in more than one overburdened community, the Department will apply the higher combined stressor total of the overburdened communities for the purposes of this analysis.

(f) The Department shall provide the screening information at (b) through (e) above to the applicant, in writing, for incorporation into the EJIS.

(g) An applicant that wishes to submit its EJIS concurrent with a permit application may obtain the screening information at (a) through (f) above from the Department's Environmental Justice Mapping, Assessment and Protection Tool (http://njdep.maps.arcgis.com/apps/webappviewer/index.html?id=34e507ead25b4aa5a5051dbb85e55055).

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 3 ENVIRONMENTAL JUSTICE IMPACT STATEMENT

N.J. Admin. Code § 7:1C-3.1 Applicability

(a) All permit applicants shall prepare and submit to the Department an environmental justice impact statement (EJIS) in accordance with the requirements of this section.

(b) Where the overburdened community is not subject to adverse cumulative stressors and the applicant demonstrates, through an analysis of the facility's contributions to the current environmental and public health stressors in the overburdened community, that the facility will avoid a disproportionate impact that would occur by creating adverse cumulative stressors as a result of the facility's contribution, only the information at N.J.A.C. 7:1C-3.2 will be required.

(c) Where the facility cannot avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution, the applicant shall include information required at both N.J.A.C. 7:1C-3.2 and 3.3.

(d) Where the overburdened community is subject to adverse cumulative stressors, the applicant shall include information required at both N.J.A.C. 7:1C-3.2 and 3.3.

(e) The Department may require inclusion of any additional information or point of analysis it deems necessary for the protection of public health and the environment.

(f) An EJIS, and any supplemental information submitted, in accordance with N.J.A.C. 7:1C-3.3, must be prepared and submitted pursuant to this chapter, as applicable. Where the information addressing a requirement is supplied in the engineering designs or reports, reference to such designs or reports may be noted in the EJIS and supplemental information, provided the appropriate section and page number of the design or report is summarized, cross referenced, and indexed. If any category or requirement above presents no impact relative to the facility, a notation of non-applicability shall be entered in the EJIS and supplemental information.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-3.2 Environmental justice impact statement requirements

(a) In its EJIS, an applicant for a facility located, or proposed to be located, in whole or in part, in an overburdened community shall include:

1. An executive summary of the information contained in the EJIS, including any supplemental information as required at N.J.A.C. 7:1C-3.3.

2. A detailed written description of the municipal and neighborhood setting of the facility, including the location of community and residential dwellings, hospitals, nursing homes, playgrounds, parks, schools, and comprehensive demographic, economic zoning, and physical descriptions. The site location shall also be identified by a site plan of the facility or equivalent map if no site plan exists.

3. A description of the facility's current and proposed operations, which shall include, but not be limited to, the following:

i. An explanation of the purpose of the permit application, including how the project serves the needs of the individuals in the overburdened community;

ii. Identification of all processes to be used, including pollution or environmental control measures and monitoring instrumentation, hours of operation, onsite equipment, traffic routes, number of employees, and all other information relevant to the potential for the facility to contribute to environmental and public health stressors in the overburdened community; and

iii. For new or expanded facilities, a schedule for the construction and operation including anticipated completion dates for major phases of construction, any pollution or environmental control measures and monitoring instrumentation, hours of operation, onsite equipment, traffic routes, number of employees, and all other information relevant to the potential for the construction to contribute to environmental and public health stressors in the overburdened community.

4. A list of all the Federal, State, and local permits that are required, or will be required, for construction or operation of the facility including, but not limited to, those defined at N.J.A.C. 7:1C-1.5.

5. Evidence of satisfaction of any local environmental justice or cumulative impact analysis ordinances with which the applicant is required to comply.

6. The initial screening information obtained pursuant to N.J.A.C. 7:1C-2.3.

7. An assessment of the impacts, both positive and negative, of the facility on each environmental and public health stressor in the overburdened community identified as affected at the chapter Appendix under conditions of maximum usage or output, and a correlation of such impacts with various stages of the site preparation, facility construction and operation, including the amounts, concentrations, and pathways of any contaminants or pollution that will be associated with the facility.

8. A public participation plan that, at a minimum, satisfies the requirements at N.J.A.C. 7:1C-3.4(d) and 7:1C-4, including all proposed forms and methods of notice to the members of the overburdened community and the proposed hearing location.

9. A demonstration, including any necessary operational conditions and control measures, that the facility will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution. If the applicant cannot make such a demonstration, then it is presumed that a disproportionate impact is present and the applicant shall include the information required at N.J.A.C. 7:1C-3.3.

10. As applicable, how a proposed new facility will serve a compelling public interest in the overburdened community, in accordance with N.J.A.C. 7:1C-5.3.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-3.3 Supplemental information

(a) An applicant shall supplement its EJIS with the information described below if the Department determines a facility is located, or proposed to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors or the facility cannot demonstrate that it will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution.

1. Site mapping showing:

i. Topographic conditions, contour data, drainage patterns, wetlands or their associated buffers, coastal zones, or other areas regulated by the Department;

ii. Areas of known plant or animal species on the Federal and State endangered, threatened, or rare plant or animal species list;

iii. All existing water classifications, designated uses, and limitations of the surface water bodies that are immediately adjacent to the site, exist on the site, or drain directly onto or off the site, upstream tributaries of bodies of water which flow onto the site, and downstream tributaries of bodies of water which flow from the site, in accordance with N.J.A.C. 7:9B; and

iv. Any existing onsite public scenic attributes or outdoor recreation and conservation opportunities in the overburdened community, such as any Federal, State, county, or municipal parks, forests, wildlife management areas and natural areas, any areas acquired for recreation and conservation purposes with Green Acres funding, program, or a non-profit conservation organization, any lands preserved as open space by a non-profit conservation organization or other public access features; and

2. Information pertaining to the existence or absence of contamination on site, which may include the existence of known, or suspected, contaminants, historical uses of the site, and any remediation activities that have occurred on the site;

3. A description of the ambient air quality data for existing concentrations of the National Ambient Air Quality Standard pollutants as identified at 42 U.S.C. §§ 7401 et seq., and a discussion of how the facility will comply with the requirements at N.J.A.C. 7:27;

4. A description of the subsurface hydrology that presents ground water quantity and quality data for the aquifers located beneath the site, including, but not limited to, depth to ground water during seasonal high and low flow, flow direction, existing uses, and future supply capabilities. In addition, a description of the soils that identifies major soil types and their characteristics, including, but not limited to, drainage, erosion potential, and sedimentation potential;

5. A description of the localized climate and flooding impacts through the presentation of site-specific data for average annual and monthly precipitation, flooding, and temperature. Meteorological data may be obtained from the nearest National Oceanographic and Atmospheric Administration sanctioned station.

i. At a minimum, the description shall use data and tools from the Department's Climate Change website (http://www.nj.gov/dep/climatechange), which must be referenced in the prepared document, and address:

(1) Whether the facility is located within a flood hazard area, as delineated by the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13;

(2) The expected impacts of flooding on the facility from the 100-year storm event and/or potential inundation due to sea level rise;

(3) Proposed resilience measures; and

(4) A list of measures to mitigate risks from flooding and inundation;

6. A traffic study that describes the transportation routes that will service the facility, site access capability, and existing traffic flow patterns expressed in terms of daily peak hour volumes, off peak hour volumes, levels of service, and average daily round trips, and the facility's current and proposed contributions thereto for all vehicles associated with the facility's operations;

7. A description of the sewage facilities that identifies the type of treatment system available, existing treatment capacity, collection system capacity, average and peak flow data, and current committed capacity for the treatment and collection system;

8. A description of the stormwater management system that identifies the type of collection and treatment system available, and current collection and treatment capacity and utilization, including the presence or absence of combined sewer overflows;

9. A description of the water supply that identifies the water supply system, water sources, level and type of existing pre-treatment, capacity of the distribution system, current commitment of capacity, availability of additional supply, and peak and average demands;

10. A description of the energy supply system on-site or immediately available to the site by identifying existing power lines or pipelines, current commitment of capacity, the capability of supplying energy to the proposed facility and/or activity, and conveying, if applicable, any energy products generated by the proposed facility and/activity from the site. This analysis shall include an evaluation of the feasibility of the utilization of onsite or offsite renewable energy resources to meet, fully or partially, the energy demand of the facility;

11. For new or expanded facilities, a sufficiently detailed comparison of reasonable design alternatives that would permit independent and comparative evaluation, including siting changes or process alternatives that could reduce some or all of the proposed facility's contributions to environmental and public health stressors in the overburdened community, including:

i. Identification of any significant differences in contributions to environmental and public health stressors that would reasonably result from the alternatives considered;

ii. A discussion of the alternative of no action or no project, including the major foreseeable consequences of such a choice;

iii. A comparison, in matrix or other appropriate format, of both the chosen alternative and the set of alternatives considered; and

iv. A justification of selection of the preferred alternative;

12. An odor, dust, and/or noise mitigation or management plan, if:

i. The facility has the potential to cause odor, dust, and/or noise off-site; or

ii. The facility has had a confirmed odor, dust, and/or noise complaint submitted through DEP's Hotline or the local health agency for the five years preceding the date of the permit application;

13. A detailed compliance history for the facility, including any existing Department permits and copies of any enforcement actions issued to the facility for the five years preceding the date of the permit application; and

14. An analysis and proposal of control measures to address the facility's contribution to environmental and public health stressors in accordance with N.J.A.C. 7:1C-5(new facilities), 6 (facility expansions), or 8 (renewal of existing major source permits).

(b) The requirements of this section are in addition to, and do not supersede, the EJIS requirements in accordance with N.J.A.C. 7:1C-3.2.

(c) An applicant may elect to submit an EJIS and any supplemental information, in accordance with this subchapter, independent of whether the facility is located, or proposed to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors or the facility cannot demonstrate that it will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-3.4 Review of Environmental Justice Impact Statement and authorization to proceed

(a) Prior to providing public notice pursuant to N.J.A.C. 7:1C-4.1, an applicant shall transmit the EJIS, and any supplemental information, to the Department for administrative review and authorization to proceed pursuant to N.J.A.C. 7:1C-4. The Department's review shall be limited to determining the presence of the information required to complete the EJIS and that the proposed public notice complies with the requirements of this chapter.

(b) Within 10 days of receipt of the EJIS, and any supplemental information, the Department shall either request revisions or the inclusion of additional information in the EJIS or provide the applicant with authorization to proceed with the public participation process pursuant to N.J.A.C. 7:1C-4.

(c) Upon providing authorization to proceed, the Department shall publish the EJIS and any supplemental information on its website and in the bulletin published pursuant to N.J.S.A. 13:1D-34 and shall provide an electronic copy to any party that has registered its interest in the project or representation of the overburdened community with the Department.

(d) The applicant shall provide, to the Department:

1. A proof of publication of the notice of public hearing required pursuant to N.J.A.C. 7:1C-4.1(a)1ii;

2. Copies of and proof of mailing of the notices required pursuant to N.J.A.C. 7:1C-4.1(a)1 iii and iv; and

3. A proof of the posting and maintenance of a sign as required pursuant to N.J.A.C. 7:1C-4.1(a)1 iv.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 4 PROCESS FOR MEANINGFUL PUBLIC PARTICIPATION

N.J. Admin. Code § 7:1C-4.1 Public notice

(a) After receiving authorization from the Department pursuant to N.J.A.C. 7:1C-3.4 to proceed to public process, the applicant shall provide notice of the public hearing and of the opportunity for the public to submit written comments, in accordance with the following, and shall maintain a record that documents that these notice requirements were met:

1. At least 60 days prior to the hearing, the applicant shall:

i. Provide a copy of the EJIS to the clerk of the municipality or municipalities in which the overburdened community is located;

ii. Publish notice of the hearing in at least two newspapers circulating within the overburdened community, including, at a minimum, one local non-English language newspaper in a language representative of the residents of the overburdened community, if applicable;

iii. Provide written notice of the hearing to the Department, the governing body, and the clerk of the municipality in which the overburdened community is located;

iv. Provide written notice of the hearing through certified mail (return receipt requested) to all persons who own and/or reside on land located within 200 feet of the facility and to any easement holders for that land who are listed in the tax records for the municipality or municipalities in which the land is located;

v. Post and maintain, in a legible condition, until the public comment period is concluded, a sign on the site of the existing or proposed facility. Any such sign must advise the public of the permit application, the public hearing on the application, and the opportunity for public comment on the proposal. Such sign must be located in a prominent location(s) viewable by the public and contain sufficient detail in a language or language representative of the residents of the overburdened community as to inform of the application and the method by which the public may obtain information about such proposed application;

vi. Provide notice through other methods identified by the applicant to ensure direct and adequate notice to individuals in the overburdened community including, but not limited to, providing information directly to active community groups or organizations, automated phone, voice, or electronic notice, flyers, and/or utilization of other publications utilized within the overburdened community; and

vii. Invite the Department, municipality or municipalities, and local environmental and environmental justice bodies to participate in the public hearing.

(b) The notices required pursuant to (a)1 above shall include the following information:

1. The name of the applicant and the date, time, and location of the hearing;

2. A general description of the proposed new or expanded facility or existing major source facility, as applicable, being considered;

3. A map indicating the location of the facility, including the street address, as applicable, municipality, county, tax map block and lot, and size of the property that would be the subject of the application being considered;

4. A brief summary of the EJIS and supplemental information, as applicable, and information on how an interested person may review a copy of the complete EJIS and supplemental information, as applicable;

5. A statement inviting participation in the public hearing and notifying the public that, for a time period of no less than 30 days after the hearing and 60 days total, written comments may be submitted to the applicant. The statement shall provide an address for submittal of written comments to the applicant; and

6. Any other information deemed appropriate by the Department, for that specific notice.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-4.2 Public hearing and comment

(a) An applicant shall schedule the public hearing, as follows:

1. The hearing must be held in the overburdened community, unless the applicant demonstrates that there is no suitable hearing space in the overburdened community. Where such demonstration is made, the hearing may, subject to the Department's approval, be held in the municipality in which the facility is, or will be, located within as close proximity as possible to the overburdened community and in a manner that facilitates participation of individuals in the overburdened community. If the facility is located in more than one overburdened community, the applicant shall, subject to the Department's approval, propose a central location within close proximity to all affected overburdened communities; and

2. All hearings must be conducted on a week day no earlier than 6:00 P.M. Eastern Standard Time/Eastern Daylight Time. An applicant shall include a virtual component to the in-person public hearing to increase public participation. The virtual component shall be recorded and available online for the public to view after the hearing until at least the close of the public comment period.

(b) At the public hearing, an applicant shall provide a clear, accurate, and complete presentation of the information contained in the EJIS and any supplemental information required by this chapter and accept written and oral comment from any interested party regarding the application. The applicant shall allot sufficient time to ensure that all interested individuals have a reasonable and adequate opportunity to provide oral comment at the hearing.

(c) The public comment period may begin upon completion of the notice requirements, in accordance with N.J.A.C. 7:1C-4.1. In addition, the comment period shall remain open a minimum of 30 days after the completion of the required public hearing, in accordance with this section and be no less than 60 days total.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-4.3 Post-hearing and comment process

(a) After the close of public comment, the applicant shall provide to the Department:

1. A written transcript of the public hearing; and

2. A summary of the public comments and the applicant's responses made at the public hearing, and a copy of the comments provided in writing after the public hearing, and the applicant's response to the public comments. The applicant shall indicate in its response how it will address the comments and, as necessary, amend and republish the EJIS.

(b) If the applicant makes a material change to the information set forth in the EJIS, its permit application, or an application pursuant to N.J.S.A. 13:1E-23, after it has submitted its EJIS pursuant to N.J.A.C. 7:1C-3, or after it has completed the public notice or public hearing requirements pursuant to this subchapter, the Department will require the applicant to amend its EJIS to reflect the material change and conduct additional public notice and public hearings pursuant to this subchapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-4.4 General requirements

The notice and hearing requirements of this subchapter are in addition to the notice and hearing requirements of any other rule, except that an applicant shall conduct the notice and public hearing required pursuant to N.J.A.C. 7:1C-4.2, concurrent with the Solid Waste Management Plan notice and hearing required pursuant to N.J.S.A. 13:1E-23.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 5 REQUIREMENTS SPECIFIC TO PERMIT APPLICATIONS FOR NEW FACILITIES

N.J. Admin. Code § 7:1C-5.1 Applicability

(a) This subchapter sets forth the requirements for an applicant that submits a permit application for a new facility that is proposed to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors or a new facility that cannot demonstrate that it will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution.

(b) In preparing an EJIS for a new facility pursuant to N.J.A.C. 7:1C-3, an applicant shall conduct the analysis and provide the information required pursuant to this subchapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-5.2 Avoidance of disproportionate impact

(a) An applicant that submits a permit application for a new facility that is proposed to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors shall analyze and propose all control measures necessary to avoid facility contributions to all adverse environmental and public health stressors in the overburdened community. Where the control measures proposed by the applicant will prevent a disproportionate impact by avoiding facility contributions to all adverse environmental and public health stressors in the overburdened community, the Department may grant the subject application pursuant to N.J.A.C. 7:1C-9.2(a).

(b) Where the control measures proposed by the applicant cannot avoid a disproportionate impact, the Department shall deny the subject application pursuant to N.J.A.C. 7:1C-9.2(b)1, unless the applicant demonstrates that the proposed facility will serve a compelling public interest in the overburdened community, in accordance with N.J.A.C. 7:1C-5.3.

(c) An applicant seeking to demonstrate that the proposed facility will serve a compelling public interest shall conduct the analysis and provide the information required at N.J.A.C. 7:1C-5.3 and 5.4.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-5.3 Compelling public interest

(a) Where a proposed new facility cannot avoid a disproportionate impact, the Department shall deny the subject application pursuant to N.J.A.C. 7:1C-9.2(b)1, unless the applicant demonstrates that the proposed facility will serve a compelling public interest in the overburdened community.

(b) An applicant that seeks approval for a proposed new facility that will serve a compelling public interest in the overburdened community where it is to be located must demonstrate that:

1. The proposed new facility will primarily serve an essential environmental, health, or safety needs of the individuals in an overburdened community;

2. The proposed new facility is necessary to serve the essential environmental, health, or safety needs of the individuals in an overburdened community; and

3. There are no reasonable alternatives that can be sited outside the overburdened community to serve the essential environmental, health, or safety needs of the individuals in an overburdened community.

(c) Facilities that directly reduce adverse environmental and public health stressors in the overburdened community may be considered as serving an essential environmental, health, or safety need of the individuals in an overburdened community.

(d) The Department may consider, as relevant, public input as to whether a compelling public interest is demonstrated if there is a significant degree of public interest in favor of or against an application from individuals residing in the overburdened community. In addition to any other public comment provided pursuant to this chapter, the Department may seek input from the public whenever it determines such comments may clarify whether the compelling public interest standard is met.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-5.4 Control measures

(a) An applicant for a proposed new major source facility that seeks to demonstrate a compelling public interest, shall propose control measures, in accordance with N.J.A.C. 7:1C-7.1.

(b) For any aspects of a new facility's operations not addressed at (a) above, the applicant shall propose control measures in the following order:

1. All feasible measures to avoid facility contributions to environmental and public health stressors;

2. For any contribution that cannot feasibly be avoided, all feasible onsite measures to minimize facility contributions to environmental and public health stressors;

3. All feasible offsite measures within the overburdened community to reduce environmental and public health stressors to which the facility will contribute;

4. All feasible offsite measures within the overburdened community to reduce adverse environmental and public health stressors to which the facility will not contribute, with preference for the reduction of stressors from highest to lowest percentile in relation to the geographic point of comparison; and

5. All feasible offsite measures within the overburdened community to provide a net environmental benefit in the overburdened community.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 6 REQUIREMENTS SPECIFIC TO PERMIT APPLICATIONS FOR FACILITY EXPANSIONS

N.J. Admin. Code § 7:1C-6.1 Applicability

(a) This subchapter sets forth the requirements for an applicant that submits a permit application for an expanded facility located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors or a facility expansion that cannot demonstrate that it will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution.

(b) In preparing an EJIS for an expanded facility pursuant to N.J.A.C. 7:1C-3, an applicant shall conduct the analysis and provide the information required pursuant to this subchapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-6.2 Avoidance of disproportionate impact

(a) An applicant that submits a permit application for an expanded facility that is proposed to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors shall analyze and propose all control measures necessary to avoid facility contributions to all adverse environmental and public health stressors in the overburdened community. Where the control measures proposed by the applicant will prevent a disproportionate impact by avoiding facility contributions to all adverse environmental and public health stressors in the overburdened community, the Department may grant the subject application pursuant to N.J.A.C. 7:1C-9.2(a).

(b) Where the control measures proposed by the applicant cannot avoid a disproportionate impact, the Department shall impose conditions, in accordance with N.J.A.C. 7:1C-9.2(b)2.

(c) An applicant seeking approval for an expanded facility where a disproportionate impact is present shall conduct the analysis and provide the information required pursuant to N.J.A.C. 7:1C-6.3.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-6.3 Control measures

(a) An applicant for an expanded major source facility shall propose control measures in accordance with N.J.A.C. 7:1C-7.1.

(b) For any aspects of any other expanded facility's operations not addressed at (a) above, the applicant shall propose control measures in the following order:

1. All feasible measures to avoid facility contributions to environmental and public health stressors;

2. For any contribution that cannot feasibly be avoided, all feasible onsite measures to minimize facility contributions to environmental and public health stressors;

3. All feasible offsite measures within the overburdened community to reduce environmental and public health stressors to which the facility will contribute;

4. All feasible offsite measures within the overburdened community to reduce adverse environmental and public health stressors to which the facility will not contribute, with preference for the reduction of stressors from highest to lowest percentile in relation to the geographic point of comparison; and

5. All feasible offsite measures within the overburdened community to provide a net environmental benefit in the overburdened community.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 7 LOCALIZED IMPACT CONTROL TECHNOLOGY FOR NEW OR EXPANDED MAJOR SOURCE FACILITIES

N.J. Admin. Code § 7:1C-7.1 Localized impact control technology for new or expanded major source facilities

(a) For a new major source facility that serves a compelling public interest pursuant to N.J.A.C. 7:1C-4.1, or an expansion of an existing major source facility, if an application proposes construction, installation, reconstruction, or modification of equipment and control apparatus that is a significant source operation, as defined at N.J.A.C. 7:27-8.1, meeting the following criteria, the applicant shall document Localized Impact Control Technology (LICT) for the source:

1. The facility has a potential to emit any HAP at a rate equal to or greater than the SOTA Threshold at N.J.A.C. 7:27-17.9.

2. The facility has a potential to emit carbon monoxide, nitrogen oxide, inhalable particles with diameters that are generally 10 micrometers and smaller, fine inhalable particles with diameters that are generally 2.5 micrometers and smaller, sulfur dioxide, total suspended particulate matter, total volatile organic compounds, or any other air contaminant or category of air contaminant not covered at (a)1 above at a rate individually equal to or greater than the five tons per year.

(b) Documentation of LICT is required only for an air contaminant for which the facility's potential to emit that air contaminant at the amount listed at (a) above.

(c) An applicant shall document compliance with the LICT standard determined through a top-down approach. To perform a top-down LICT demonstration, the applicant shall:

1. Identify and evaluate a list of air pollution control technologies or measures that may be applied to the source to reduce each contaminant identified at (a) above. This list shall not be limited to measures that have been applied to other existing sources in this same source category and shall include measures applied to sources in similar source categories, as well as innovative control technologies, modification of the process or process equipment, other pollution prevention measures, and combinations of the above measures.

2. Arrange the measures on the list in descending order of air pollution control effectiveness. The first-listed or "top" measure shall constitute LICT for the source unless the applicant provides one of the following:

i. A demonstration that the top measure should be eliminated from consideration because it is technically infeasible, based on physical, chemical, or engineering principles, and/or technical difficulties that would prevent the successful application of the measure;

ii. A demonstration that the top measure should be eliminated from consideration based on its environmental impacts. The justification shall show that the adverse environmental effects of the top measure, such as effects on water or land, or HAP emissions, when compared with its air contaminant emission reduction benefits, would make use of the top measure unreasonable; or

iii. A demonstration that the top measure should be eliminated from consideration based on its energy impacts. The justification shall show that the top measure uses fuels that are not reliably available; or that the energy consumed by the top measure is greater than the proposed measure(s), and that the extra energy used, when compared with the air contaminant emission reduction benefits resulting from the top measure, would make use of the top measure unreasonable.

3. If the top measure is eliminated from consideration under any of the provisions at (c)2i, ii, or iii above, the applicant shall evaluate each successive measure on the list, using the procedures described at (c)2 above, until a measure is reached that is not eliminated. Upon the Department's approval of the LICT demonstration, this measure shall constitute the LICT for the source.

(d) The requirements of this subchapter shall not apply to sources permitted in a general permit issued pursuant to N.J.A.C. 7:27-8.8 or in a general operating permit issued pursuant to N.J.A.C. 7:27-22.14.

(e) The requirements of this subchapter shall not relieve the applicant from the responsibility to comply with any other State, local, or Federal regulations.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 8 REQUIREMENTS SPECIFIC TO RENEWAL APPLICATIONS FOR MAJOR SOURCE FACILITIES

N.J. Admin. Code § 7:1C-8.1 Applicability

(a) This subchapter sets forth the requirements for an applicant for a permit for a major facility, as defined at N.J.A.C. 7:27-22.1, that submits an application for a renewal of its operating permit required pursuant to N.J.A.C. 7:27-22 and is located in an overburdened community that is subject to adverse cumulative stressors or cannot demonstrate that it will avoid a disproportionate impact that would occur by creating adverse cumulative stressors in the overburdened community as a result of the facility's contribution.

(b) In preparing an EJIS for the renewal of an existing major source permit pursuant to N.J.A.C. 7:1C-3, an applicant shall conduct the analysis and provide the information required pursuant to this subchapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-8.2 Avoidance of disproportionate impact

(a) In addition to the analysis and measures required at N.J.A.C. 7:1C-8.3, 8.4, and 8.5, an applicant that submits a permit application for the renewal of an existing major source permit that is to be located, in whole or in part, in an overburdened community that is subject to adverse cumulative stressors shall analyze and propose feasible control measures necessary to avoid facility contributions to all adverse environmental and public health stressors in the overburdened community. Where the control measures proposed by the applicant will prevent a disproportionate impact by avoiding facility contributions to all adverse environmental and public health stressors in the overburdened community, the Department may grant the subject application pursuant to N.J.A.C. 7:1C-9.2(a).

(b) Where the control measures proposed by the applicant cannot avoid a disproportionate impact, the Department shall impose conditions in accordance with N.J.A.C. 7:1C-9.2(b)2.

(c) An applicant seeking the renewal of a major source facility permit, where a disproportionate impact is present, shall conduct the analysis and provide the information required pursuant to N.J.A.C. 7:1C-8.3, 8.4, 8.5, and 8.6.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-8.3 General requirements

(a) An applicant for a major facility permit renewal subject to this subchapter shall include the following in its environmental justice impact statement, as applicable:

1. A facility-wide risk assessment, pursuant to N.J.A.C. 7:1C-8.4, unless:

i. The applicant or designated responsible corporate official certifies that:

(1) The applicant submitted a facility-wide risk assessment, as part of its application for its current effective operating permit;

(2) The Department approved the facility-wide risk assessment; and

(3) No new information or change in use or operation at the facility occurred since the Department approved the facility-wide risk assessment; and

ii. The Department determines that there have been no changes to the requirements for a facility-wide risk assessment pursuant to N.J.A.C. 7:1C-8.4, requiring an update to the facility-wide risk assessment; and

2. A technical feasibility analysis to reduce emissions to the maximum extent technically feasible, pursuant to N.J.A.C. 7:1C-8.5, if the facility meets the criteria set forth at N.J.A.C. 7:1C-8.5.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-8.4 Facility-wide risk assessment

(a) An applicant of a major facility permit renewal subject to this subchapter shall submit a facility-wide risk assessment that evaluates existing source operations and includes each source operation's emission rates of hazardous air pollutants (HAP) and toxic substances that exceed the reporting thresholds at N.J.A.C. 7:27-17.9(a).

(b) The applicant shall conduct the facility-wide risk assessment in accordance with a protocol approved in advance by the Department. The Department will not approve a protocol unless it takes all relevant site-specific and general factors into account. These factors include, but are not limited to, a land use analysis, proper consideration of topography, a good engineering practice stack height analysis, use of the most recent version of the USEPA-approved models, identification of the most appropriate meteorological data, and consideration of all relevant averaging times. The protocol shall document how the applicant proposes to conduct the facility-wide risk assessment, and how the results will be presented to the Department. Technical guidance on the preparation of a protocol can be found in the Air Quality Permitting Program's Technical Manual 1002 (Guidance on Preparing an Air Quality Modeling Protocol) and Technical Manual 1003 (Guidance on Preparing a Risk Assessment for Air Contaminant Emissions) available on the Department's website at http://www.nj.gov/dep/aqpp/techman.html.

(c) If the outcome of the facility-wide risk assessment is above a negligible level pursuant to Technical Manual 1003, then the applicant shall submit a plan to lower the risk to a negligible level as part of its EJIS in accordance with N.J.A.C. 7:1C-2. The plan may include measures, such as applying better air pollution controls to lower emissions, modifying stack parameters to increase dispersion, and/or implementing applicable risk minimization strategies to reduce risk in the overburdened community.

(d) If the facility's proposed plan does not lower risk to a negligible level, the Department will include conditions in its decision that are necessary to reduce risk in the overburdened community.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-8.5 Technical feasibility analysis

(a) An applicant for a major facility permit renewal subject to this subchapter shall submit a technical feasibility analysis if the facility's current effective operating permit includes any equipment or control apparatus that meets the following:

1. The equipment or control apparatus was installed at least 20 years prior to the expiration date of its current effective operating permit;

2. The equipment or control apparatus was not subject to review under this subchapter in the 15 years prior to the expiration date of its current effective operating permit; and

3. The total emissions of any of the pollutants listed below from all equipment or control apparatus that meet the criteria at (a)1 and 2 above, comprise at least 20 percent of the facility's overall potential to emit that pollutant. All emissions shall be calculated based on potential to emit:

i. Fine particulate matter (PM_2.5);

ii. Nitrogen oxides; and

iii. Volatile organic compounds.

(b) The applicant shall list each equipment and source operation that meets the criteria at (a) above, according to the potential to emit of each equipment and source operation, in descending order, for each applicable pollutant.

(c) The applicant shall submit as part of its EJIS pursuant to N.J.A.C. 7:1C-3, a technical feasibility analysis that addresses each equipment and source operation required to be listed at (b) above, beginning at the top of the list provided at (c)1 and 2 below. The technical feasibility analysis shall include the following, and utilize the "top-down" approach, as provided below:

1. A list of air pollution control technologies or pollution prevention options that may be applied to each equipment or control apparatus to reduce the pollutants identified at (a)3 above, which shall:

i. Include control applied to similar types of sources, innovative control technologies, modification of the process or process equipment, other pollution prevention measures, and combination of these measures; and

ii. List each measure in descending order of air pollution control effectiveness.

2. A proposal to reduce emissions of each pollutant that meets (a)3 above by applying the first listed or "top" measure in its list for each equipment and control apparatus, unless the applicant demonstrates that:

i. The top measure is technically infeasible, based on physical, chemical, or engineering principles, and/or technical difficulties that would prevent the successful application of the measure;

ii. The top measure would be unreasonable when comparing its air contaminant emission reduction benefits with its adverse environmental effects, such as effects on water or land, or HAP emissions;

iii. The total and incremental costs of the top measure are greater than the total and incremental costs of the proposed measure(s), which costs shall be calculated using the techniques in the latest edition of the USEPA's Air Pollution Control Cost Manual and that the extra costs, compared with the air contaminant emission reduction benefits resulting from the top measure, would make use of the top measure unreasonable; or

iv. The top measure uses fuels that are not reliably available, or that the energy consumed by the top measure is greater than the proposed measure(s), and the extra energy used, when compared with the air contaminant emission reduction benefits resulting from the top measure, would make use of the top measure unreasonable.

3. If the top measure is eliminated from consideration, the applicant shall evaluate each successive measure on the list, using the procedure described at (c)2 above, until the applicant reaches its proposed measure.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-8.6 Control measures

(a) An applicant seeking renewal of an existing facility's major source permit shall propose control measures in accordance with N.J.A.C. 7:1C-8.3, 8.4, and 8.5.

(b) For any aspects of the existing major source facility's operations not addressed at (a) above, the applicant shall propose control measures in the following order:

1. All feasible measures to avoid facility contributions to environmental and public health stressors; and

2. For any contribution that cannot feasibly be avoided, all feasible onsite measures to minimize facility contributions to environmental and public health stressors.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 9 DEPARTMENT REVIEW AND DECISION

N.J. Admin. Code § 7:1C-9.1 Department review

(a) Following the completion of the public participation process at N.J.A.C. 7:1C-4, the Department shall consider the EJIS and any supplemental information, testimony, written comments, the applicant's response to comments, and any other information deemed relevant by the Department to evaluate its decision pursuant to this chapter.

(b) In issuing its decision pursuant to N.J.A.C. 7:1C-9.2, the Department shall:

1. Determine whether the facility will avoid a disproportionate impact to an overburdened community;

2. Evaluate and determine the feasibility of conditions on the construction or operation of the facility in accordance with the requirements at N.J.A.C. 7:1C-5, 6, and 8 and such evaluation shall not be limited to those conditions proposed by the applicant;

3. Evaluate conditions on the construction or operation of the facility in accordance with the requirements at N.J.A.C. 7:1C-7, which evaluation shall not be limited to those conditions proposed by the applicant; and

4. Impose conditions selected by the Department after being evaluated pursuant to (b)2 and 3 above, on the construction or operation of the facility.

(c) If it is necessary for the Department to engage one or more experts to evaluate any information submitted by the applicant, the Department shall notify the applicant, include an estimate of the cost to the Department to engage the expert(s), and direct the applicant to submit payment in full within 90 days of the Department's notice in order to obtain further review of its application. An application for which the Department finds it necessary to engage an expert for alternatives analysis review shall not be considered complete before the Department has received and reviewed the recommendations of the expert.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-9.2 Department decision

(a) If the Department determines that the facility will avoid a disproportionate impact, the Department shall authorize the applicant to proceed with the imposition of conditions set by the Department as necessary to ensure a disproportionate impact is avoided.

(b) If the Department determines that the facility cannot avoid a disproportionate impact, it shall:

1. For new facilities:

i. Deny the application; or

ii. Find that the facility will serve a compelling public interest pursuant to N.J.A.C. 7:1C-5.3 in the overburdened community and authorize the applicant to proceed with the imposition of conditions set by the Department as necessary to avoid or minimize contributions to adverse environmental and public health stressors, reduce adverse environmental and public health stressors, and/or provide a net environmental benefit in the overburdened community;

2. For expanding facilities: authorize the applicant to proceed with the Department permitting the imposition of appropriate conditions set by the Department as necessary to avoid or minimize contributions to adverse environmental and public health stressors, reduce adverse environmental and public health stressors, or provide a net environmental benefit in the overburdened community;

3. For major source renewals: authorize the applicant to proceed with the Department permitting the imposition of appropriate conditions set by the Department as necessary to avoid or minimize contributions to adverse environmental and public health stressors in the overburdened community; and

The Department shall not issue a decision that would compromise the reasonable requirements of public health, safety, and welfare to the environment in the overburdened community.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-9.3 Form and timing of decision

(a) The Department shall issue its decision, in writing, with a summary of facts, the Department's analysis, and identification of any conditions set by the Department that will be incorporated into any subsequently issued Departmental permits for the facility. The Department's decision shall constitute a final agency decision and shall be incorporated into any related permitting decisions.

(b) The Department may determine that its decision pursuant to this subchapter satisfies the requirements of this chapter for subsequent Department permits for the facility required to be listed pursuant to N.J.A.C. 7:1C-3.2(a)4 and identified in the Department-authorized EJIS, provided the permit applications are submitted to the Department within five years of the date of the decision and there is no material change to the facility. Any such permits shall be listed in the decision.

(c) In accordance with N.J.S.A. 13:1D-160.b, and notwithstanding the provisions at N.J.S.A. 13:1D-29 et seq., or any other law, rule, or regulation adopted pursuant thereto, to the contrary, the Department shall not issue a decision pursuant to this chapter until at least 45 days after the public hearing held pursuant to N.J.A.C. 7:1C-4.

(d) The Department shall not consider complete for review, any permit application for a facility subject to the requirements of this chapter prior to the issuance of a decision.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-9.4 Violation of permit conditions

(a) Any violation of the conditions imposed pursuant to this chapter shall, as applicable, be considered non-minor violations or aggravating circumstances, or the equivalent, under any other Department rules applicable to the facility.

(b) Any violation of the conditions imposed pursuant to this chapter shall constitute grounds for suspension or revocation, in accordance with N.J.S.A. 13:1B-3 and 13:1D, or the underlying permitting authorities of any Department-issued permits.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-9.5 Procedure to request an adjudicatory hearing; decision on the request; effect of request

(a) This section sets forth the process by which a person may request an adjudicatory hearing to contest a Department decision pursuant to this chapter.

(b) To contest a Department decision pursuant to this chapter, a person shall submit an adjudicatory hearing request within 30 calendar days of issuance. If a person submits the adjudicatory hearing request after this time, the Department shall deny the request.

(c) A person requesting an adjudicatory hearing shall provide the following information on an adjudicatory hearing request form, available from the Department:

1. The name, address, daytime telephone number, fax number, and email address of the person requesting the hearing, and of the person's authorized representative;

2. A copy of the Department decision on which a hearing is being requested;

3. The date that the Department decision on which a hearing is being requested was received by the person requesting the hearing;

4. A specific admission, denial, or explanation of each fact appearing in the Department decision, or a statement that the person is without knowledge thereof;

5. A concise statement of the facts or principles of law asserted to constitute any factual or legal defense; and

6. Where the person submitting the hearing request is not the person to whom the decision that is being contested was issued, evidence that a copy of the hearing request has been mailed or delivered to the person to whom the decision was issued.

(d) A person requesting an adjudicatory hearing shall:

1. Submit the original hearing request to:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

Attention: Adjudicatory Hearing Requests

Mail Code 401-07A

PO Box 402

401 East State Street, 7th Floor

Trenton, NJ 08625-0402; and

Submit a copy of the hearing request to the Director of the Office of Permit and Project Navigation.

(e) Nothing in this subchapter shall be construed to provide a right to an adjudicatory hearing in contravention of the Administrative Procedure Act, at N.J.S.A. 52:14B-3.1, 3.2, and 3.3.

(f) The Department shall notify the requester that the request for hearing is granted or denied. If the hearing request is denied, the denial shall provide the reason(s) for the denial. If the hearing request is granted, the Department shall refer the matter to the Office of Administrative Law for a contested case hearing, in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(g) A final decision issued by the Commissioner after the hearing in the Office of Administrative Law shall be considered a final agency action for purposes of the Administrative Procedure Act and

shall be subject to judicial review in the Appellate Division of the Superior Court, as provided in the Rules of Court.

(h) When an applicant requests an adjudicatory hearing to contest a Department decision pursuant to this chapter, the decision shall be automatically stayed in its entirety.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Subchapter 10 FEES

N.J. Admin. Code § 7:1C-10.1 Applicability

An applicant who submits an application for an individual permit for a new or expanded facility, or the renewal of an existing major source permit, located, or proposed to be located, in whole or in part, in an overburdened community shall remit a fee to the Department, in accordance with this subchapter.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-10.2 Payment of fees

(a) Fees for activities related to environmental justice review shall be paid in U.S. dollars by certified check, government purchase order or check, or money order, payable to "Treasurer, State of New Jersey," and mailed or hand-delivered to the following address, unless the Department authorizes some other means of payment:

New Jersey Department of Environmental Protection

Office of Permitting and Project Navigation

PO Box 420

401 East State Street

Trenton, NJ 08625-0420

(b) The Department may refrain from commencing work on activities related to environmental justice review until the Department receives full payment of such fee. If the Department has commenced work on the service, the Department may suspend such work until it receives full payment of such fee.

(c) The Department shall not issue a decision pursuant to N.J.A.C. 7:1C-9, unless the fee required pursuant to this subchapter is paid in full.

(d) Any fee pursuant to this subchapter that is subject to N.J.A.C. 7:1L shall be payable in installments, in accordance with N.J.A.C. 7:1L.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

N.J. Admin. Code § 7:1C-10.3 Fee calculation

(a) By December 1 of the first full year after April 17, 2023, the Department shall calculate base EJIS submission fees for the upcoming fiscal year (July 1 through June 30), as follows:

1. The Department shall determine its EJIS review budget by determining the dollar amount needed to accomplish all tasks associated with administering the EJIS Review, including costs to provide technical assistance to permit applicants and overburdened communities as needed to comply with this chapter. The Department shall not include in its EJIS Review budget any costs associated with any other program areas within the Department's Environmental Justice Program that is funded by a source outside of the EJIS Review budget. The result shall be the total amount of revenue that is to be collected through EJIS submission fees.

2. The Department shall calculate the EJIS submission fee by dividing the EJIS review revenue calculated pursuant to (a) above by the number of EJIS submissions received by the Department in the prior calendar year.

(b) For each fiscal year after April 17, 2023, the Department shall prepare an EJIS Program Fee Calculation Report based on the prior calendar year data, including the information contained in the annual budget submission to the Department of the Treasury, and the numbers of EJIS applications, and the EJIS submission fee that shall be due and payable for that calendar year. Beginning March 2024, and each March thereafter, the Department shall publish in the New Jersey Register, a notice that includes a summary of the report and its EJIS Review budget. The Department shall also post this report on its website.

(c) Through April 17, 2024, the initial fee shall be $3,900 per EJIS reviewed.

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Chapter 1D GENERAL PRACTICE AND PROCEDURE

Subchapter 1 PETITIONS FOR RULES

N.J. Admin. Code § 7:1D-1.1 Procedure to petition for a rule

(a) Unless otherwise provided in Title 7 of the New Jersey Administrative Code, this section shall constitute the Department of Environmental Protection's rules regarding the disposition of all requests for rulemaking pursuant to N.J.S.A. 52:14B-4(f).

(b) Any interested person may petition the Department of Environmental Protection to promulgate, amend or repeal any rule of the Department of Environmental Protection. Such petition must be in writing, signed by the petitioner, and must state clearly and concisely:

1. The full name and address of the petitioner;

2. The substance or nature of the rulemaking which is requested. The petitioner may provide the text of the requested proposed rule;

3. The reasons for the request;

4. The petitioner's interest in the request, including any relevant organization affiliation or economic interest;

5. The statutory authority under which the Department of Environmental Protection may take the requested action; and

6. Existing Federal or State statutes and rules which the petitioner believes may be pertinent to the request.

(c) Petitions for the promulgation, amendment or repeal of a rule by the Department of Environmental Protection shall be sent by e-mail to

RulePetitions@dep.nj.gov

or in hard copy addressed to:

Office of Legal Affairs

Attention: Rulemaking Petitions

Department of Environmental Protection

Mail code 401-04L

401 East State Street, 7th Floor

PO Box 402

Trenton, New Jersey 08625-0402

(d) Any document submitted to the Department of Environmental Protection that is not in substantial compliance with this section shall not be deemed to be a petition for rulemaking requiring further agency action.

(e) Upon receipt by the Department of a petition for rulemaking, the following shall occur:

1. The petition shall be dated, stamped and logged;

2. The petition shall be referred to the relevant Department division or other Department office, as appropriate; and

3. A notice of petition shall be prepared and filed within 15 days of receipt with the Office of Administrative Law in accordance with N.J.A.C. 1:30-4.1(c).

(f) In accordance with N.J.A.C. 1:30-4.2(a), within 60 days following receipt of a petition, the Department shall mail to the petitioner and file with the Office of Administrative Law for publication in the New Jersey Register a notice describing the Department's action on the petition in accordance with (g) below.

(g) In accordance with N.J.S.A. 52:14B-4(f) and N.J.A.C. 1:30-4.2(a), the Department shall take one of the following actions on the petition:

1. Deny the petition, in which case the notice of action shall explain the reasons for the denial;

2. Grant the petition and initiate rulemaking within 90 days of granting the petition; or

3. Refer the matter for further deliberations. The Department shall conclude its further deliberations within 90 days of the referral. Upon conclusion of such further deliberations, the Department shall either deny the petition and provide a written statement of its reasons or grant the petition and initiate rulemaking within 90 days of granting the petition. The results of these further deliberations shall be mailed to the petitioner and shall be submitted to the Office of Administrative Law for publication in the New Jersey Register.

(h) In accordance with N.J.A.C. 1:30-4.2(b), a specific period of more than 90 days for further deliberations under (g)3 above and/or to initiate a rulemaking proceeding under (g)2 or 3 above may be agreed upon, in writing, by the petitioner and the Department. An agreement to extend either period or both periods shall constitute an action on the petition for which notice shall be submitted to the Office of Administrative Law for publication in the New Jersey Register.

History

• New Rule, R.1989 d.419, effective 8/7/1989.
• See: 21 N.J.R. 102(a), 21 N.J.R. 2302(a).
• Notice of Action of Petition for Safe Drinking Water Act regulations.
• See: 22 N.J.R. 2364(c).
• Amended by R.2000 d.353, effective 8/21/2000.
• See: 32 N.J.R. 1892(a), 32 N.J.R. 3090(b).
• In (c), changed name and address.
• Amended by R.2002 d.355, effective 11/4/2002.
• See: 34 N.J.R. 2386(a), 34 N.J.R. 3818(a).
• Rewrote (b)2; in (e)3, substituted "accordance" for "compliance" and amended the N.J.A.C. reference; rewrote (f) and (g).
• Amended by R.2011 d.210, effective 8/1/2011.
• See: 43 N.J.R. 249(a), 43 N.J.R. 1864(a).
• In the address in (c), inserted "Mail code 401-04L" and "401 East State Street, 4th Floor"; and added (h).
• Administrative changes.
• See: 46 N.J.R. 2041(a).

Subchapter 2 DEBARMENT, SUSPENSION, AND DISQUALIFICATION FROM DEPARTMENT CONTRACTING

N.J. Admin. Code § 7:1D-2.1 Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Affiliates" means persons having an overt or covert relationship such that any one of them directly or indirectly controls or has the power to control another.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Debarment" means an exclusion from contracting, on the basis of a lack of responsibility evidenced by an offense, failure, or inadequacy of performance, for a reasonable period of time commensurate with the seriousness of the offense, failure or inadequacy of performance.

"Department" means the Department of Environmental Protection.

"DEP contracting" means any arrangement giving rise to an obligation to supply any thing to or perform any service for the Department of Environmental Protection, other than by virtue of State employment, or to supply any thing to or perform any service for a private person where the DEP provides substantial financial assistance and retains the right to approve or disapprove the nature or quality of the goods or service or the persons who may supply or perform the same.

"Disqualification" means a debarment or a suspension which denies or revokes a qualification to bid or otherwise engage in DEP contracting which has been granted or applied for pursuant to statute, or rules and regulations.

"Person" means any natural person, company, firm association, corporation, or other entity.

"State" means the State of New Jersey, or any of the departments or agencies in the executive branch of government with the lawful authority to engage in contracting.

"Suspension" means an exclusion from DEP contracting for a temporary period of time, pending the completion of an investigation of legal proceedings.

N.J. Admin. Code § 7:1D-2.2 Causes for debarment

(a) The Department of Environmental Protection shall debar a person in the public interest for any of the following causes:

1. Commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract, or subcontract thereunder, or in the performance of such contract or subcontract;

2. Violation of the Federal Organized Crime Control Act of 1970, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, perjury, false swearing, receiving stolen property, obstruction of justice, or any other offense indicating a lack of business integrity or honesty;

3. Violation of the Federal or State antitrust statutes, or of the Federal Anti-Kickback Act (18 U.S.C. 874, 40 U.S.C. 276 b, c);

4. Violations of any of the laws governing the conduct of elections of the State of New Jersey or of its political subdivisions;

5. Violation of the Law Against Discrimination ( P.L. 1945, c.169, C.N.J.S.A. 10:5-1 et seq., as supplemented by P.L. 1975, c.127), or of the act banning discrimination by industries engaged in defense work in the employment of persons therein (C.114, L.1942, C.N.J.S.A. 10:1-10 et seq.);

6. Violations of any laws governing hours of labor, minimum wage standards, prevailing wage standards, discrimination in wages, or child labor;

7. Violations of any laws governing the conduct of occupations or professions or regulated industries;

8. Willful failure to perform in accordance with contract specifications or within contractual time limits;

9. A record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, provided that such failure or unsatisfactory performance has occurred within a reasonable time preceding the determination to debar and was caused by acts within the control of the person debarred;

10. Violation of contractual or statutory provisions regulating contingent fees;

11. Any other cause affecting responsibility as a State contractor of such serious and compelling nature as may be determined by the department to warrant debarment, including such conduct as may be prescribed by the laws or contracts enumerated in this paragraph even if such conduct has not been or may not be prosecuted as violations of such laws or contracts;

12. Debarment by some other department or agency in the executive branch.

N.J. Admin. Code § 7:1D-2.3 Conditions for debarment

(a) Debarment from department contracting shall be made only by the commissioner, except as otherwise provided by law.

(b) The existence of any of the causes set forth in section 2 of this subchapter shall not necessarily require that a person be debarred. In each instance, the decision to debar shall be made within the discretion of the head of the department or agency unless otherwise required by law, and shall be rendered in the best interests of the State.

(c) All mitigating factors shall be considered in determining the seriousness of the offense, failure or inadequacy of performance and in deciding whether debarment is warranted.

(d) The existence of a cause set forth in section 2(a)1 through 7 of this subchapter shall be established upon the rendering of a final judgment or conviction by a court of competent jurisdiction or by an administrative agency empowered to render such judgment. In the event an appeal taken from such judgment or conviction results in reversal thereof, the debarment shall be removed upon the request of the debarred person unless other cause for debarment exists.

(e) The existence of a cause set forth in section 2(a)8 through 11 of this subchapter shall be established by evidence which the department or agency determines to be clear and convincing in nature.

(f) Debarment for the cause set forth in section 2(a)12 of this subchapter shall be proper provided that one of the remaining causes set forth in section 2 of this subchapter was the basis for debarment by the original debarring agency. Such debarment may be based entirely on the record of facts obtained by the original debarring agency, or upon a combination of such facts and additional facts.

N.J. Admin. Code § 7:1D-2.4 Procedures, period, and scope of debarment

(a) When the Department or any agency within its control or jurisdiction seeks to debar a person or his or her affiliates, the person or persons shall be furnished with a written notice stating that:

1. Debarment is being considered;

2. The reasons for the proposed debarment; and

3. An opportunity will be afforded to such person or persons for a hearing if the hearing is requested within seven days from the date of personal delivery or the date of mailing of such notice. Such request shall be filed with the Department at the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

PO Box 420

Trenton, New Jersey 08625-0420

(b) All such hearings shall be conducted in accordance with the provisions of the Administrative Procedure Act (N.J.S.A. 54:14B-1 et seq.). Where any State department or agency has already imposed debarment upon a party, the commissioner may also impose a similar debarment without affording an opportunity for a hearing, provided the commissioner furnishes notice of the proposed similar debarment to that party, and affords that party an opportunity to present information in his behalf to explain why the proposed similar debarment should not be imposed in whole or in part.

(c) Debarment shall be for reasonable, definitely stated period of time which as a general rule shall not exceed five years. Debarment for an additional period shall be permitted provided that notice thereof is furnished and the party is afforded an opportunity to present information in his behalf to explain why the additional period of debarment should not be imposed.

(d) Except as otherwise provided by law, a debarment may be removed or the period thereof may be reduced in the discretion of the commissioner, upon the submission of a good faith application under oath, supported by documentary evidence, setting forth substantial and appropriate grounds for the granting of relief, such as, newly discovered material evidence, reversal of a conviction or judgment, actual change of ownership, management or control, or the elimination of the causes for which the debarment was imposed.

(e) A debarment may include all known affiliates of a person provided that each decision to include an affiliate is made on a case by case basis after giving due regard to all relevant facts and circumstances. The offense, failure or inadequacy of performance of an individual may be imputed to a person with whom he is affiliated, where such conduct was accomplished within the course of his official duty or was effected by him with the knowledge or approval of such person.

History

• Amended by 50 N.J.R. 1488(a), effective 7/2/2018

N.J. Admin. Code § 7:1D-2.5 Suspension and causes therefor

The commissioner may suspend a person from State contracting with the department or any agency within the control or jurisdiction of the department for any cause specified in section 2 of this subchapter or upon a reasonable suspicion that such cause exists.

N.J. Admin. Code § 7:1D-2.6 Conditions for suspension

(a) Suspension from State contracting shall be made only by the commissioner with the approval of the Attorney General, except as otherwise provided by law.

(b) The existence of any cause for suspension shall not require that a suspension be imposed, and a decision to suspend shall be made at the discretion of the commissioner with the approval of the Attorney General, if in the best interests of the State.

(c) Suspension shall not be based upon unsupported accusation, but upon adequate evidence that cause exists or upon evidence adequate to create a reasonable suspicion that cause exists.

(d) In assessing whether adequate evidence exists, consideration shall be given to the amount of credible evidence which is available, to the existence or absence of corroboration as to important allegations, and to inferences which may properly be drawn from the existence or absence of affirmative facts.

(e) Reasonable suspicion of the existence of a cause described in section 2(a)1 through 7 of this subchapter may be established by the rendering of a final judgment or conviction by a court or administrative agency of competent jurisdiction, by grand jury indictment, or by evidence that such violations of civil or criminal law did in fact occur.

(f) A suspension invoked by another department or agency in the executive branch for any of the causes described in section 2 of this subchapter may be the basis for the imposition of a concurrent suspension by the commissioner without the necessity of an approval therefor by the Attorney General.

N.J. Admin. Code § 7:1D-2.7 Procedures, period and scope of suspension

(a) When the commissioner suspends a person or his affiliates from department contracting, the person or persons suspended shall be furnished with a written notice that within ten days after the effective date of the suspension stating that:

1. A suspension has been imposed and its effective date;

2. The reasons for the suspension to the extent that the Attorney General determines that such reasons may be properly disclosed;

3. The suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; and

4. If legal proceedings are not commenced or the suspension removed within 60 days of the date of such notice, the party will be given either a statement of the reasons for the suspension and an opportunity for a hearing if he so requests, or a statement declining to give such reasons and setting forth the position of the commissioner regarding the continuation of the suspension;

5. Where a suspension by another department or agency in the executive branch has been the basis for suspension by the commissioner, he shall note that fact as a reason for his suspension.

(b) A suspension shall not continue beyond 18 months from its effective date unless civil or criminal action regarding the alleged violation shall have been initiated within that period, or unless debarment action has been commenced. Whenever prosecution or debarment action has been initiated, the suspension may continue until the legal proceedings are completed.

(c) A suspension may include all known affiliates of a person, provided that each decision to include an affiliate is made on a case by case basis after giving due regard to all relevant facts and circumstances. The offense, failure or inadequacy of performance or an individual may be imputed to a person with whom he is affiliated, where such conduct was accomplished within the course of his official duty or was effectuated by him with the knowledge or approval of such person.

(d) A request for a hearing pursuant to (a) above shall be filed with the Department at the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

History

• Amended by 50 N.J.R. 1488(a), effective 7/2/2018

N.J. Admin. Code § 7:1D-2.8 Applicability

The rules contained herein governing debarment or suspension shall be applicable to existing practices and procedures of the department and all agencies within the control or jurisdiction of the department, under laws that concern prequalification for State contracting to the extent that such practices and procedures may concern the disqualification of any person from State contracting.

N.J. Admin. Code § 7:1D-2.9 Exclusions

Any exclusion from department contracting under these rules by virtue of debarment, suspension or disqualification shall extend to all State contracting and subcontracting within the control or jurisdiction of the department; provided, however, if the commissioner determines that it is essential to the public interest and files a finding thereof with the Attorney General, the commissioner may grant an exception from total exclusion with respect to a particular contract.

N.J. Admin. Code § 7:1D-2.10 Notice

Insofar as practicable, prior notice shall be given by the commissioner to the Attorney General and the Treasurer of any proposed debarment or suspension under these rules.

N.J. Admin. Code § 7:1D-2.11 Lists

The department shall provide the State Treasurer with the names of all persons suspended or debarred and the effective date and term thereof, if any.

N.J. Admin. Code § 7:1D-2.12 Discretion

Nothing required by these rules shall be construed to limit the authority of the commissioner or any agency within the control or jurisdiction of the department to refrain from contracting within the discretion allowed by law.

Subchapter 3 NON-PUBLIC RECORDS

N.J. Admin. Code § 7:1D-3.1 Scope

The categories of records in N.J.A.C. 7:1D-3.2, Records not subject to disclosure, is in addition to protections that are contained in the Open Public Records Act (OPRA), N.J.S.A. 47:14A-1 et seq., any applicable statute, resolution of one or both houses of the Legislature, regulation, Executive Order of the Governor, court order, or subject area-specific protection in Title 7, Department of Environmental Protection, of the New Jersey Administrative Code.

N.J. Admin. Code § 7:1D-3.2 Records not subject to disclosure

(a) The documents, files, data, and other records of the Department that are listed below shall not be deemed to be government records subject to public access pursuant to OPRA. Such records shall not be available for inspection, examination, or copying by members of the public or by any other individual, except authorized members and employees of the Department or except as provided by order of the Governor of the State, a court or tribunal of competent jurisdiction, or applicable law:

1. Records relating to mediation proceedings conducted by or on behalf of the Department, except that any records that were open for public inspection, examination or copying prior to mediation shall continue to be available for public inspection, examination or copying during and after mediation. Final agreements resulting from mediation shall be available for public inspection, examination or copying;

2. Records that reveal the identity of a complainant. For purposes of this paragraph, "complainant" means a person who submits a report, complaint, or an allegation to the Department either alleging violation of environmental law or reporting an environmental concern and who is not obligated by law or rule to submit such a report, complaint, or allegation;

3. Portions of records containing the precise location of endangered and/or threatened animal species or endangered plant species or plant species of concern.

i. Notwithstanding (a)3 above:

(1) The Department shall disclose the precise location of endangered and/or threatened animal species, endangered plant species or plant species of concern to the owner of land upon which the animal or plant species has been located.

(2) If the Department denies or issues any permit or approval, where any of the aforementioned actions is the subject of a challenge in any administrative or judicial forum, the applicant, or any other person with a constitutional or statutory right to a hearing on that action by the Department, may request, and the Department shall provide, only those Department records containing the location(s) of endangered and/or threatened animal species, endangered plant species or plant species of concern relied upon by the Department to make any of the denials, approvals, or determinations.

(3) Prior to providing the records containing the location(s) of endangered and/or threatened animal species, endangered plant species or plant species of concern under (a)3i(1) or (2) above, the Department shall redact the name(s) of the person(s) who provided the information contained in the records provided under (a)3i(1) or (2) above if the Department determines that the person(s) providing such information did not provide this information in the course of his or her employment with the State of New Jersey.

ii. If the Department determines that disclosure under (a)3i above is likely to create a substantial risk of harm, theft, or destruction to the species or habitats or the area or place where the species or habitats are located, the Department may require the recipient of the records to state in writing prior to access to the records that he or she shall keep the precise location of endangered and/or threatened animal species, endangered plant species or plant species of concern confidential.

iii. A property owner who has obtained records in accordance with this paragraph may share the records or disclose the information contained therein to his or her agent (such as an attorney, environmental consultant, or engineer) to the extent necessary to prepare and submit an application to the Department or any other governmental regulatory authority for a permit, approval, authorization, or other determination. If a property owner is required to execute a confidentiality agreement in accordance with ii above, the property owner shall not share the records or disclose the information contained therein to his or her agent unless the agent states in writing (on a form provided by the Department) prior to access to the records or information contained therein that he or she shall keep the precise location of endangered and/or threatened animal species, endangered plant species, or plant species of concern confidential. The property owner shall submit each such writing to the Department at the address specified on the form.

iv. For the purposes of this paragraph, the term "endangered and/or threatened animal species" shall have the meaning(s) of the terms "endangered" and/or "threatened" as these terms are defined at N.J.A.C. 7:25-4.1. The term "endangered plant species" shall have the meaning of "endangered species" as the term is defined at N.J.A.C. 7:5C-1.4. The term "plant species of concern" shall have the meaning as set forth at N.J.A.C. 7:5C-3.1; and

4. Portions of records that identify, track, or otherwise determine the location of any animal or bird which, in the opinion of the Division of Fish and Wildlife, is potentially capable of inflicting serious or fatal injuries or being a menace to public health including, but not limited to, bears, nondomestic dogs, nondomestic cats, venomous and constrictor snakes, and exotic species. This includes, but is not limited to, records containing information regarding sightings, dens, nests, or other habitation sites, locations of traps or other control techniques, and tracking or locational information generated by collars, tags, or transmitters affixed to such species by the Department including, but not limited to, radio frequency identification tags (RFID) and passive integrated transponder tags (PIT).

i. The Department shall disclose the records identified in (a)4 above to the owner of land upon which the potentially dangerous species has been located, if requested by the landowner.

(1) Prior to providing records containing the location of potentially dangerous species under this subparagraph, the Department shall redact the name of the person who provided the information contained in the records, if the Department determines that the person providing such information did not provide this information in the course of his or her employment with the State of New Jersey.

(b) The Department shall withhold any record if the Department determines that the inspection, examination or copying of that record would substantially interfere with the State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would materially increase the risk or consequences of potential acts of sabotage or terrorism. Such records include, but are not limited to:

1. Any inventory of enforcement resources, including standard operating procedures, compiled and any policies or plans compiled by the Department pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies, including employee emergency contact information;

2. Information related to a nuclear power plant, which, if disclosed, would jeopardize the public health, safety and welfare or the security of the plant;

3. Listing of low level radioactive waste generators including amounts of waste generated and shielding designs for sources of radiation;

4. National defense related information from Lockheed Martin's Aegis Radar System facility;

5. Environmental Emergency Procedures detailing plans such as emergency procedures for wastewater treatment facilities pursuant to New Jersey Pollutant Discharge Elimination rules, N.J.A.C. 7:14A-6.12(D);

6. Inundation maps submitted as part of Emergency Action Plans pursuant to Dam Safety Standards, N.J.A.C. 7:20-1.7(f) and 1.11(i);

7. Discharge Prevention Containment and Countermeasures and Discharge Cleanup Removal Plans and related general site plans; and

8. Radioactive Materials Licenses issued by the Nuclear Regulatory Commission and advisories issued by the Nuclear Regulatory Commission that address lessons learned, security or enforcement issues.

(c) Records related to Green Acres, Blue Acres, and Natural Lands Trust land acquisitions, program offerings, and active projects, including appraisals, valuations, and title investigations, shall be made available for public inspection, examination, and copying no later than 48 hours before formal action is to be taken on any land transaction, program offering, or active project, unless the land transaction, program offering, or active project is actively under negotiation, a binding contract has not been executed, or disclosure of the records would jeopardize the land transaction, program offering, or active project. An active project is one that has been initiated within two years of the date of appraisal.

History

• Amended by 51 N.J.R. 1759(a), effective 12/2/2019

Subchapter 5 EXTENSION OF COMMENT PERIOD AND PUBLIC HEARINGS ON PROPOSED RULES; NOTICE OF PROPOSAL AND QUARTERLY RULEMAKING CALENDAR

N.J. Admin. Code § 7:1D-5.1 Extension of comment period on a proposed rule

(a) The Department may extend the public comment period on a proposed rule whenever the Commissioner determines an extension is appropriate.

(b) The Department shall extend the public comment period on a proposed rule for an additional 30 days when sufficient public interest is demonstrated in accordance with (c) below.

(c) Sufficient public interest is demonstrated when, based on written request(s) for an extension or on the comments received within the 30-day period following publication of the proposal in the New Jersey Register:

1. The Department is satisfied that one of the criteria in (c)1i or ii below is met;

i. The proposed rule is complex and/or involves significant amendment(s) to a regulatory program; or

ii. The request(s) to extend the comment period encompasses a broad range of interests;

2. The Department determines that extension of the comment period is likely to result in the Department receiving comments relevant to the proposed rule that raise issues or provide new information, data or findings that were not previously raised or provided during the development of the proposed rule or during the initial comment period; and

3. The Department determines that the delay in the rulemaking process resulting from an extension of the public comment period is not likely to result in an adverse impact(s) to the public health, safety or welfare or the environment.

N.J. Admin. Code § 7:1D-5.2 Public hearing on a proposed rule

(a) The Department may conduct a public hearing on a proposed rule whenever the Commissioner determines that conducting a public hearing is appropriate.

(b) The Department shall conduct a public hearing on a proposed rule if required by statute.

(c) The Department shall conduct a public hearing on a proposed rule if, in accordance with N.J.S.A. 52:14B-4(a)(3), within 30 days following publication of the proposed rule in the New Jersey Register:

1. A public hearing is requested by a committee of the Legislature;

2. A public hearing is requested by a governmental agency or subdivision; or

3. Sufficient public interest in a public hearing is demonstrated in accordance with (d) below.

(d) Sufficient public interest is demonstrated when, based on written request(s) for a public hearing or on the comments received within the 30-day period following publication of the proposal in the New Jersey Register:

1. The Department is satisfied that at least one of the criteria in (d)1i through iii below is met;

i. The proposed rule is complex and/or involves significant amendment(s) to a regulatory program;

ii. The request(s) for the Department to conduct a public hearing encompasses a broad range of interests; or

iii. Notice of a public hearing was not included in the notice of proposal or in any subsequent notice during the 30-day period;

2. The Department determines that conducting a public hearing is likely to result in the Department receiving comments relevant to the proposed rule that raise issues or provide new information, data or findings that were not previously raised or provided during the development of the proposed rule or during the initial comment period; and

3. The Department determines that delay in the rulemaking process resulting from conducting a public hearing is not likely to result in an adverse impact(s) to the public health, safety or welfare or the environment.

N.J. Admin. Code § 7:1D-5.3 Notice of proposed rule

(a) The Department shall provide the following types of public notice for all of its rule proposals:

1. Publication of the proposal in the New Jersey Register;

2. Posting of a notice or statement of the substance of the proposed rule on the Department's website at http://www.state.nj.us/dep;

3. Distribution of a notice or statement of the substance of the proposed rule to the news media maintaining a press office in the State House Complex; and

4. Distribution of a notice or statement of the substance of the proposed rule to those persons who made timely request to the Department for notice of its rulemakings.

(b) In addition to the notice provided in accordance with (a) above, the Department shall distribute by electronic mail a notice of each Department rule proposal to a distribution list that the Department maintains to communicate regarding rulemaking with the regulated community and interested parties, including environmental organizations, permittees, trade organizations and other interest groups and individuals.

(c) In addition to the notice provided in accordance with (a) and (b) above, the Department may provide public notice of a rule proposal using one of the following methods:

1. Mailing to a distribution list, maintained by the Department program primarily responsible for administering the proposed rule, of individuals, entities, organizations or government entities, that have expressed an interest in receiving information regarding the proposed rule;

2. Posting in central locations or other areas in State managed lands where persons that may be interested in or affected by the proposed rule are likely to see the notice;

3. Publication in a newsletter or trade, industry, government or professional publication whose distribution list includes persons most likely to be affected by or interested in the proposed rule;

4. Distribution at regularly scheduled meetings of advisory groups or councils whose members are most likely to be affected by or interested in the proposed rule; or

5. Publication in at least one newspaper of general circulation having a distribution area sufficient to inform those persons most likely to be affected by or interested in the proposed rule.

History

• Amended by R.2011 d.210, effective 8/1/2011.
• See: 43 N.J.R. 249(a), 43 N.J.R. 1864(a).

N.J. Admin. Code § 7:1D-5.4 Notice of rulemaking calendar

(a) The Department shall provide notice of its rulemaking calendar pursuant to N.J.S.A. 52:14B-3 as follows:

1. Publication in the New Jersey Register;

2. Distribution to the news media maintaining a press office in the State House Complex; and

3. Posting on the Department's website at http://www.state.nj.us/dep.

Chapter 1E DISCHARGES OF PETROLEUM AND OTHER HAZARDOUS SUBSTANCES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1E-1.1 Scope

(a) This chapter covers the discharge of hazardous substances as defined in this chapter. These rules set forth guidelines and procedures to be followed by all persons in the event of a discharge of a hazardous substance. They also set forth certain registration, reporting, design, operational, and maintenance requirements for owners and operators of major facilities and transmission pipelines which handle hazardous substances.

(b) This subchapter prescribes the provisions that are generally applicable. The following shall govern how certain terms are defined for use in this chapter, which persons are subject to this chapter, and the Department's rights of access for determining compliance with this chapter and the Act.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• In (a) deleted exception for discharges pursuant to permit.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a), inserted ", operational,".

N.J. Admin. Code § 7:1E-1.2 Construction

(a) These rules, being necessary to promote the public health and welfare, and to protect the environment, shall be liberally construed so as to permit the Department to discharge its statutory functions under the Act.

(b) The Commissioner may amend or repeal this chapter in conformance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and N.J.A.C. 1:30.

N.J. Admin. Code § 7:1E-1.3 Severability

If any section, subsection, provision, clause or portion of this chapter or the application thereof to any person or circumstance is adjudged invalid or unconstitutional by a court of competent jurisdiction, the remainder of this chapter and the application thereof to other persons or circumstances shall not be affected thereby, and shall remain in full force and effect.

N.J. Admin. Code § 7:1E-1.4 Relationship to Federal and State Law

These rules are not intended to and do not relieve any person of the duty to comply with all other applicable laws, ordinances, rules, regulations or orders of governmental authorities governing activities regulated hereunder, including rules or regulations of the New Jersey Department of Environmental Protection, New Jersey Department of the Treasury, and other appropriate State, Federal and local agencies.

N.J. Admin. Code § 7:1E-1.5 State non-liability

(a) New Jersey State government is not liable for any damages arising from its actions or omissions relating to any plan, registration or map required pursuant to this chapter. No approval by the Department of any plan or of any cleanup and removal activities shall be a defense against liability for the discharge, nor shall it shift liability for the discharge to the Department.

(b) In the event of a discharge, any person responsible for the discharge shall be held liable to the extent determined by the Act.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• In (b) substituted "any person" for "the person".

N.J. Admin. Code § 7:1E-1.6 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Aboveground storage tank" means any storage tank not defined as an underground storage tank.

"Act" means the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., as amended.

"Agent(s) or officer(s) of the municipality" means a duly authorized representative of the municipality or local board of health, including, but not limited to, a member of the police, fire, or public works department, public health officer, township engineer, zoning officer, director of emergency management, or environmental compliance officer.

"API" means the American Petroleum Institute, 1220 L Street, NW, Washington, DC, 20005-4070, http://www.api.org/.

"API 510" means API's Standard 510, entitled "Pressure Vessel Inspection Code: Maintenance Inspection, Rating, Repair and Alteration," as amended or supplemented.

"API 570" means API's Piping Inspection Code 570, entitled "Inspection, Repair, Alteration and Rerating of In-service Piping Systems," as amended or supplemented.

"API 653" means the API's Standard 653, entitled "Tank Inspection, Repair, Alteration and Reconstruction," as amended or supplemented.

"ASME" means the American Society of Mechanical Engineers, 3 Park Avenue, New York, NY, 10016-5990, http://www.asme.org/.

"ASME Section V" means ASME Boiler and Pressure Vessel Code Section V, entitled "Nondestructive Examination," as amended or supplemented.

"ASME Section VIII" means ASME Boiler and Pressure Vessel Code Section VIII, entitled "Pressure Vessels," as amended or supplemented.

"ASME Section X" means ASME Boiler and Pressure Vessel Code Section X, entitled "Fiberglass-Reinforced Plastic Pressure Vessels," as amended or supplemented.

"Assertedly confidential information" means information which is the subject of a confidentiality claim, for which a confidentiality determination has not been made.

"ASTM" means the American Society of Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA, 19428-2951, http://www.astm.org/.

"ASTM D5856" means ASTM's Standard D5856, entitled "Standard Test Method for Measurement of Hydraulic Conductivity of Porous Material Using a Rigid-Wall, Compaction-Mold Permeameter," as amended and supplemented.

"ASTM D93" means ASTM's Standard D93, entitled "Standard Test Methods for Flash-Point by Pensky-Martens Closed Cup Tester," as amended and supplemented.

"ASTM E1067" means ASTM's Standard E1067-01, entitled "Standard Practice for Acoustic Emission Examination of Fiberglass Reinforced Plastic Resin (FRP) Tanks/Vessels," as amended and supplemented.

"Broker" means any person who arranges for the transportation, treatment, storage or disposal of hazardous substances on behalf of another person.

"CFR" means the Code of Federal Regulations.

"Claimant" means any person who submits a confidentiality claim under this chapter.

"Class confidentiality determination" means a confidentiality determination made by the Department under N.J.A.C. 7:1E-8.9, for a class of information.

"Cleanup and removal activities" means actions to clean up or remove or attempt to clean up or remove a discharge of a hazardous substance or the source thereof, or to chemically neutralize the discharge, or measures to prevent or mitigate any damages to the public health, safety or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources.

"Cleanup and removal costs" means all costs associated with cleanup and removal activities incurred by the State, its political subdivisions or their agents or any person with written approval of the Department.

"Commissioner" means the Commissioner of the Department of Environmental Protection or the person designated to act on his or her behalf pursuant to an administrative order.

"Confidential copy" means a record (or copy thereof) submitted to or obtained by the Department, containing information which the claimant asserts is confidential information.

"Confidential information" means information for which the claimant has asserted a confidentiality claim, in compliance with the procedures required by N.J.A.C. 7:1E-7, and such confidentiality claim has not expired by its terms, been waived or withdrawn, and for which the Department has made a confidentiality determination in compliance with N.J.A.C. 7:1E-8.

"Confidentiality claim" or "claim" means, with respect to information that a person is required either to submit to the Department or to allow the Department to obtain, a written request by such person that the Department treat such information as confidential information.

"Confidentiality determination" means a determination by the Department that assertedly confidential information is or is not confidential information.

"Containment" or "containment activities" means actions to limit or prevent the spread of a leak or discharge.

"Contractor" means a person, other than an employee of the owner or operator or the Department, who has entered into an agreement with the owner or operator or the Department to perform services or to provide goods.

"Controlling interest" means the direct ownership of at least 50 percent of the voting stock or other equity interest in a person.

"DCR plan" means the discharge cleanup and removal plan required under N.J.A.C. 7:1E-4.

"Department" means the New Jersey Department of Environmental Protection.

"Diligent inquiry" means:

1. Conducting a diligent search of all documents which are reasonably likely to contain information related to a possible discharge, which documents are in such person's possession, custody or control, or in the possession, custody or control of any other person from whom the person conducting the search has legal right to obtain such documents; and

2. Making reasonable inquiries of current and former employees and agents whose duties include or included any responsibility for hazardous substances, and any other current and former employees or agents who may have knowledge or documents relevant to a discharge.

"Discharge" means any intentional or unintentional action or omission, unless pursuant to and in compliance with the conditions of a valid and effective Federal or State permit, resulting in the releasing, spilling, pumping, pouring, emitting, emptying or dumping of a hazardous substance into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State. This term does not include "leak."

"Discharge cleanup organization" means an organization or association that has equipment and personnel to be utilized in cleanup and removal activities.

"Discharge monitoring device" means any equipment or instrumentation that is used to detect discharges at the facility.

"Double-walled piping" means piping which consists of one pipe fixed inside another, with an annular space between.

"DPCC plan" means the discharge prevention, containment and countermeasure plan required under N.J.A.C. 7:1E-4.

"Environmentally sensitive areas" means, for the purposes of planning for discharge control and mitigation, geographic areas which contain one or more significant natural or ecological resources as set forth in N.J.A.C. 7:1E-1.8.

"EPA" means the U.S. Environmental Protection Agency.

"Equivalent measure" means:

1. The total volume, in gallons, of the drum, tote or other container holding the hazardous substance; or

2. For hazardous substances not stored or transported in containers, the calculated volume, in gallons, of the space the hazardous substance occupies.

"Facility" means any place or equipment that is used to refine, produce, store, hold, handle, transfer, process or transport hazardous substances.

"Facility inventory" means an actual accounting of on-hand hazardous substance quantities, performed on a minimum of an annual basis.

"Field-erected storage tank" means a steel storage tank erected on-site where it will be used.

"Final public copy" means a copy of a record submitted to or obtained by the Department, identical to the confidential copy except that any confidential information has been blacked out; provided, however, that if the record is not in a form in which confidential information can be concealed by blacking out, the "final public copy" shall be a copy of such record from which such confidential information has been deleted, containing notations stating where deletions have been made.

"Financial reporting year" means the latest consecutive 12-month period for which any of the following reports used to support a financial test in accordance with N.J.A.C. 7:1E-4.4(g) is prepared: a 10-K report submitted to the Security and Exchange Commission; an annual report of tangible net worth submitted to Dun and Bradstreet; or annual reports submitted to the Energy Information Administration, Rural Utilities Services or the Board of Public Utilities. "Financial reporting year" may thus comprise a fiscal or a calendar year period.

"Grace period" means the period of time afforded under N.J.S.A. 13:1D-125, et seq., commonly known as the Grace Period Law, for a person to correct a minor violation in order to avoid imposition of a penalty that would be otherwise applicable for a violation.

"Guarantor" means a person who:

Possesses a controlling interest in the owner or operator;

2. Possesses a controlling interest in a person who possesses a controlling interest in the owner or operator;

3. Is controlled through stock ownership by a common parent firm that possesses a controlling interest in the owner or operator; or

Is engaged in a substantial business relationship with the owner or operator and issues the guarantee as an act incident to that business relationship.

"Hazardous substances" means all substances set forth in N.J.A.C. 7:1E-1.7.

"Impermeable" means utilizing a layer of natural or man-made material of sufficient thickness, density and composition so as to have a maximum permeability for the hazardous substance being contained of 10-7 centimeters per second at the maximum anticipated hydrostatic pressure.

"Incompatible materials" means those substances which, if mixed, will create hazards greater than those posed by the individual substances alone, such as fire, explosion, or generation of toxic fumes.

"Integrity testing" means a method of testing structures as established in N.J.A.C. 7:1E-2.16.

"Internal inspection" means an examination of the interior of an aboveground storage tank appropriate to the type and size of the tank and in accordance with N.J.A.C. 7:1E-2.16.

"Leak" or "leakage" means any escape of a hazardous substance from the ordinary containers employed in the normal course of storage, transfer, processing or use into a secondary containment or diversion system or onto a surface from which it is cleaned up and removed prior to its escape into the waters or onto the lands of the State.

"Liquid" means having a viscosity between 0.2 centipoise and 3000 centipoise inclusive at one atmosphere (760.0 millimeters of mercury) pressure and temperatures between 32 and 120 degrees Fahrenheit (0 and 49 degrees Centigrade).

"Major facility" means all facilities, located on one or more contiguous or adjacent properties owned and/or operated by the same person, having total aggregate, combined storage capacity of:

1. 20,000 gallons or more for hazardous substances other than petroleum or petroleum products;

2. 200,000 gallons or more for hazardous substances of all kinds; or

An equivalent measure as defined in this section, for hazardous substances which are not commonly measured by volume;

4. A vessel, except a vessel used solely for activities directly related to recovering, containing, cleaning up or removing discharges of petroleum in the surface waters of the State, including training, research and other activities directly related to discharge response, shall be considered a major facility only when hazardous substances are transferred between vessels. A "transmission pipeline" is not a major facility.

"Major leak" means an accident required to be reported pursuant to 49 CFR 195.50.

"Natural resources" means all land, fish, shellfish, wildlife, biota, air, waters and other such resources owned, managed, held in trust, or otherwise controlled by the State.

"NJPDES permit" means a permit or permit-by-rule issued by the Department pursuant to N.J.A.C. 7:14A.

"Nonmiscible lighter-than-water" means having a density less than water and not mixing with water to an appreciable degree.

"NPDES permit" means a permit or permit-by-rule issued by EPA pursuant to 40 CFR 122.

"Out-of-service" means any container, pipe, or equipment from which all liquid and sludge has been removed, all connecting lines and piping have been disconnected and blanked off, all valves (except for ventilation valves) have been closed and locked, and on which conspicuous signs have been posted that state that it is out of service and note the date of removal from service.

"Owner or operator" means any person who, with respect to:

1. A vessel, owns, operates or charters by demise such vessel;

2. Any facility, owns such facility, or operates it by lease, contract or other form of agreement; and

Abandoned or derelict facilities, owned or operated such facility immediately prior to such abandonment, or the owner at the time of the discharge.

"Person" means public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, as well as individuals, and when used to designate the owner of property which may be subject to this chapter, includes this State, the United States, any other state of the United States, and any foreign country or government, and any political subdivisions or agents, lawfully owning or possessing property in this State.

"Person in charge" means an individual designated as being in charge of marine transfer operations pursuant to U.S. Coast Guard regulations at 33 CFR 154.710 or 33 CFR 155.700.

"Person responsible for a discharge" means:

1. Any person whose act or omission results or has resulted in a discharge;

2. Each owner or operator of any facility, vehicle or vessel from which a discharge has occurred;

3. Any person who owns or controls any hazardous substance which is discharged;

4. Any person who has directly or indirectly caused a discharge;

5. Any person who has allowed a discharge to occur; or

6. Any person who brokers, generates or transports the hazardous substance discharged.

"Petroleum" or "petroleum products" means any liquid that is essentially a complex mixture, whether natural or synthetic, of hydrocarbons of different types with small amounts of other substances, such as compounds of oxygen, sulfur or nitrogen, or metallic compounds, or any of the useful liquid products obtained from such a liquid by various refining processes, such as fractional distillation, cracking, catalytic reforming, alkylation and polymerization. This term shall include, but not be limited to, gasoline, kerosene, fuel oil, synthetic oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, and hazardous substances listed in Appendix A which are to be used in the refining or blending of crude petroleum or petroleum stock in this State.

"Preliminary public copy" means a copy of a record held by the Department, identical to the confidential copy except that any assertedly confidential information has been blacked out; provided, however, that if the record is not in a form in which confidential information can be concealed by blacking out, the "preliminary public copy" shall be a copy of such record from which such confidential information has been deleted, containing notations stating where deletions have been made.

"Process area" or "production facility" means an area employed in production in which an action, operation or treatment embracing chemical, industrial, manufacturing or processing factors, methods, or forms is carried out utilizing hazardous substances. These factors, methods or forms include, but are not limited to, batch or continuous chemical reactions, distillation, blending and mixing operations, refining and re-refining processes, and separation processes.

"Radionuclide" means any substance listed in 40 CFR 302.4, Appendix B.

"Record" means any document, writing, photograph, sound or magnetic recording, drawing, or other similar thing by which information has been preserved and from which the information can be retrieved or copied.

"Regional Administrator" means the Regional Administrator of EPA for the Federal region which includes the State of New Jersey.

"Regulated portion" means the area, portion, or equipment in a major facility or transmission pipeline in which hazardous substances are routinely refined, produced, stored, held, handled, used, processed, or transferred.

"Repair" means any work necessary to maintain or restore a storage tank or other equipment to a condition suitable for safe operation, other than that necessary for ordinary, day-to-day maintenance to keep up the functional integrity of the storage tank or other equipment.

"Reservoir" means a receptacle or chamber which can be used for storing a fluid.

"Requester" means a person who has made a request to the Department to inspect or copy records which the Department possesses or controls.

"Response coordinator" means the individual at the major facility or transmission pipeline who shall possess sufficient corporate authority and technical background to hire contractors and obligate funds to implement cleanup and removal activities and to act as a liaison with Federal, State and/or local on-scene coordinator(s).

"Secondary containment or diversion system" means any structures, devices or combinations thereof supplementary to the ordinary containers employed in the normal course of storage, transfer, processing or use, designed and operated to prevent leaks of hazardous substances from becoming discharges.

"Sewage" means domestic sewage, including the contents and effluents of septic tanks, public sewer systems and public sewage treatment plants.

"Sewage sludge" means the dried or semi-liquid residue of a sewage treatment process.

"Shop-built storage tank" means a storage tank fabricated in a manufacturing facility and shipped to the site where it will be installed and used.

"Small business" means any business which is resident in New Jersey, independently owned and operated, not dominant in its field, and employs fewer than 100 full time employees.

"Soil permeability testing" means a quantitative measurement of the ease with which a liquid moves through soil, such as ASTM D5856.

"SP001" means STI's Standard SP001, "Standard for the Inspection of Aboveground Storage Tanks," as amended or supplemented.

"Standard operating procedure" or "SOP" means a document setting forth the operating procedures, in accordance with N.J.A.C. 7:1E-2.14, for an operation involving a hazardous substance at the facility.

"State of the art technology" means up-to-date technology reflected in equipment or procedures that, when applied at a major facility, will result in a significant reduction in the probability of a discharge. The technology represents an advancement in reduction of leaks or discharges and shall have been demonstrated at a similar facility to be reliable in commercial operation or in a pilot operation on a scale large enough to be translated into commercial operation. The technology shall be in the public domain at reasonable cost commensurate with the reduction in probability of leaks or discharges achieved, or otherwise available at reasonable cost commensurate with the reduction in probability of leaks or discharges achieved. Technologies verified by the New Jersey Corporation for Advanced Technology (NJCAT) as innovative environmental technologies are deemed to meet this definition. Information on verified technologies shall be available from the Department through the Office of Innovative Technology and Market Development within the Division of Science and Research.

"Static head testing" means testing which involves the filling of a tank with water or other liquid, or placing the tank under pressure, to determine if there are any leaks over a definite period of time.

"STI" means the Steel Tank Institute, 570 Oakwood Road, Lake Zurich, IL 60047, http://www.steeltank.com.

"Storage capacity" means that capacity which is dedicated to, used for, or intended to be used for storage of hazardous substances of all kinds. This term shall include, but not be limited to, above and underground storage tanks, drums, reservoirs, containers, bins, and the intended or actual use of open land or unenclosed space. For a storage tank, the total volumetric design capacity of the tank shall be the storage capacity. This term shall not include the capacity of:

1. A heating oil tank servicing only the individual private residence at which it is located;

2. Any underground storage tank at the facility used solely to store heating oil for on-site consumption;

3. Any tank or container that is out-of-service; or

4. Any container five gallons or less in size.

"Storage tank" means any tank or reservoir which is a container for hazardous substances and which is primarily used for bulk storage.

"Substantial business relationship" means the extent of a business relationship necessary pursuant to applicable State law to ensure that a guarantee contract issued incident to that relationship is valid and enforceable.

"Substantial damage" means damage which is material and of real worth, value or effect. This term does not include damage which is speculative, contingent, or nominal.

"Substantial modification" means any change in facility design, construction, operation or maintenance that will materially affect the facility's potential for discharges of hazardous substances. This term may include, but is not limited to, change in service of a storage tank, discontinuation of or start-up of a production facility, change in use of transfer areas or substances transferred, and change in hours of operation.

"Substantial reconstruction" means any restoration, refurbishment, renovation or relocation of existing equipment which incurs costs equal to 50 percent or more of the replacement value of the equipment, or which impairs the physical integrity of the equipment or its monitoring systems.

"Substantiation" means information which a claimant submits to the Department in support of a confidentiality claim pursuant to N.J.A.C. 7:1E-8.3.

"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets do not include intangibles such as goodwill and rights to patents or royalties. For purposes of this definition, "assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity as a result of past transactions.

"Transfer" means onloading or offloading between major facilities and vessels, or vessels and major facilities, and from vessel to vessel or major facility to major facility except for fueling or refueling operations, and except that with regard to the movement of hazardous substances other than petroleum, it shall also include any onloading of or offloading from a major facility.

"Transfer capacity" means the maximum quantity of hazardous substances which can be transferred into or out of a facility in a 24-hour period.

"Transmission pipeline" means new and existing pipe and any equipment, facility, rights-of-way, or building used or intended for use in the transportation of a hazardous substance by a pipeline and having a throughput capacity of 140 gallons per minute (530 liters per minute) or greater. This term does not include the transportation of a hazardous substance through onshore production or flow lines, refining, or manufacturing facilities, or storage terminals or inplant piping systems associated with those facilities. Any pipe used or intended to be used in the transportation of a hazardous substance which is not a transmission pipeline will be considered an in-facility pipe.

"Underground storage tank" means any tank defined as such in N.J.A.C. 7:14B.

"Vessel" means every description of watercraft or other contrivance that is practicably capable of being used as a means of commercial transportation of hazardous substances upon the waters, whether or not self propelled.

"Waters" means the ocean and its estuaries to the seaward limit of the State's jurisdiction, all springs, streams and bodies of surface or ground water, whether natural or artificial, within the boundaries of this State.

History

• Amended by R.1992 d.186, effective 4/20/1992.
• See: 23 N.J.R. 2848(a), 24 N.J.R. 1484(a).
• Definitions added for "assertedly confidential information", "claimant", "class confidentiality determination", "confidential copy", "confidential information", "confidentiality claim" and "confidentiality determination", "contract", "contractor", "final public copy", "record", "requester" and "substantiation".
• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Inserted "Equivalent measure"; in "Major facility", rewrote 3; and in "State of the art technology", added the fourth and fifth sentences.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Inserted "API 510", "API 570", "ASTM E1067", "Facility Inventory", and "Internal visual inspection".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Deleted definitions "Affiliate", "API 574", "Bulk storage", "Handling", "Major maintenance", "Major repair", "Paved or surfaced" and "SPCC plan"; added definitions "ASTM D5856", "ASTM D93", "Field-erected storage tank", "Financial reporting year", "Grace period", "Out-of-service", "Repair", "Shop-built storage tank", "Soil permeability testing", "SP001" and "STI"; rewrote definitions "API", "ASME", "ASTM", "Controlling interest", "Discharge cleanup organization", "Hazardous substances", "Integrity testing", "Response coordinator" and "Standard operating procedure"; in definition "ASTM E1067", substituted "E1067-01" for "E1067-96"; in paragraph 3 of definition "Guarantor", inserted "through stock ownership"; substituted definitions "Internal inspection" for "Internal visual inspection" and "Static head testing" for "Static head product testing" and rewrote definitions; in definition "Petroleum", substituted "any liquid" for "any bituminous liquid", and inserted ", whether natural or synthetic," and "synthetic oil,"; and in definition "Storage capacity", deleted "or" from the end of paragraph 1, inserted a semicolon at the end of paragraph 2 and added paragraphs 3 and 4.

N.J. Admin. Code § 7:1E-1.7 Hazardous substances

(a) Petroleum and petroleum products and all substances listed at N.J.A.C. 7:1E Appendix A, incorporated herein by reference, shall be considered hazardous substances, except that sewage and sewage sludge shall not be considered as hazardous substances.

(b) For the purposes of this chapter, the following shall not be considered hazardous substances:

1. Metals, in either their pure elemental form or alloyed, in solid pieces with at least one dimensional measurement equal to or exceeding 100 micrometers (0.004 inches) or chemically bonded to an inert substrate;

2. Any flammable substance or inert gas listed at N.J.A.C. 7:1E Appendix A and that is designated by an asterisk(*); and

3. Any substance that is not normally hazardous to the health and safety of a person in their common chemical state, but which becomes unusually hazardous to firefighters and the surrounding community in the event of the exposure of the substance to a fire. These substances are listed at N.J.A.C. 7:1E Appendix A and are designated by a double asterisk (**).

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (b)2, inserted "substance" following "flammable".

N.J. Admin. Code § 7:1E-1.8 Environmentally sensitive areas

(a) For the purposes of designing and implementing a DPCC and a DCR plan, pursuant to N.J.A.C. 7:1E-4, the following shall be considered environmentally sensitive areas:

1. Surface waters, including, without limitation, the following: large rivers, medium rivers, streams, creeks, ponds, lakes, and reservoirs as defined in N.J.A.C. 7:7-12.1(b); canals as defined in N.J.A.C. 7:7-9.8(a); estuaries, as defined in 33 U.S.C. § 1330(k); and bays, including without limitation open bays, semi-enclosed bays, and back bays, as defined in N.J.A.C. 7:7-12.1(b);

2. Any water resource, as defined at N.J.A.C. 7:19-1.3, which is utilized by a public water system, nonpublic water system, or water system, as defined at N.J.A.C. 7:10-1.3;

3. Bay islands, as defined at N.J.A.C. 7:7-9.21(a), and barrier island corridors, as defined at N.J.A.C. 7:7-9.20(a);

4. Beaches, as defined in N.J.A.C. 7:7-9.22(a);

5. Dunes, as defined in N.J.A.C. 7:7-9.16(a);

6. Wetlands and wetland transition areas, including, without limitation, the following: freshwater wetlands and transition areas, as defined at N.J.A.C. 7:7A-1.4; wetlands, as defined in N.J.A.C. 7:7-9.27(a); and wetland buffers and transition areas, as defined in N.J.A.C. 7:7-9.28(a);

7. Critical wildlife habitat, as defined in N.J.A.C. 7:7-9.37(a);

8. Prime fishing areas, as defined in N.J.A.C. 7:7-9.4(a);

9. Finfish migratory pathways, as defined in N.J.A.C. 7:7-9.5(a);

10. Submerged vegetation habitat, as defined in N.J.A.C. 7:7-9.6(a);

11. Shellfish waters as defined in N.J.A.C. 7:9B-1.4;

12. Forest areas, including prime forestland and unique forestland;

13. Habitat for Federal and State endangered or threatened plant and animal species, as defined in N.J.A.C. 7:7-9.36(a);

14. Federal and State wilderness areas, including areas included within the Natural Areas System, as designated in N.J.A.C. 7:5A-1.13, or the State Register of Natural Areas pursuant to the Natural Areas System Act, N.J.S.A. 13:1B-15.12a et seq. and 15.4 et seq., and N.J.A.C. 7:5A-1.4, and preserved land held by the New Jersey Natural Lands Trust pursuant to the New Jersey Natural Lands Trust Act, N.J.S.A. 13:1B-15.119 et seq.; and

15. Wild and scenic river corridors, as defined in N.J.A.C. 7:7-9.44(a).

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Rewrote (a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.
• Administrative correction and change.
• See: 46 N.J.R. 438(a).
• Administrative correction.
• See: 49 N.J.R. 2530(a).

N.J. Admin. Code § 7:1E-1.9 Access

(a) During normal business hours and at any time during an actual or suspected discharge or violation the Department and its representatives shall have the right to enter and inspect any facility, vessel, building, or equipment, or any portion thereof, in order to ascertain compliance with the Act, this chapter, or any order, or consent agreement issued or entered into pursuant thereto. At any time, the Department and its representatives shall have the right to enter and inspect those portions of any facility, vessel, building or equipment actively engaged in the transfer or processing of hazardous substances in order to ascertain compliance with the Act or this chapter, or any order, consent order or agreement issued or entered into pursuant thereto. Such right shall include, but not be limited to, the right to test or sample any materials at the facility, to sketch, photograph or videotape any portion of the facility, vessel, building or equipment, to copy or photograph any document or records necessary to determine such compliance or noncompliance; and to interview any employees or representatives of the owner or operator or their contractors. Such right shall be absolute and shall not be conditioned upon any action by the Department, except the presentation of appropriate credentials as requested and compliance with appropriate standard safety procedures.

(b) The Department may inspect major facilities prior to approving DPCC or DCR plans.

(c) Owners or operators, and any employees or representatives thereof, shall assist and shall not hinder or delay the Department and its representatives in the performance of all aspects of any inspection.

History

• Amended by R.1992 d.186, effective 4/20/1992.
• See: 23 N.J.R. 2848(a), 24 N.J.R. 1484(a).
• Deleted (e) regarding availability of information.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (b); deleted former (c); and recodified former (d) as (c).

N.J. Admin. Code § 7:1E-1.10 Waiver

The Department, when it determines that the application of these rules would impair expeditious containment or cleanup and removal of discharges, or endanger life, health, safety or the environment, may waive any provision of these rules.

N.J. Admin. Code § 7:1E-1.11 Applicability

(a) No person shall cause, suffer, allow or permit a discharge of a hazardous substance.

(b) Major facilities, as defined in N.J.A.C. 7:1E-1.6, are required to meet the standards of this chapter. The Department shall grant the owner or operator of a major facility a reasonable period of time, in light of all circumstances including economic feasibility, to upgrade existing equipment and procedures to meet the standards of N.J.A.C. 7:1E-2, excluding the requirements of N.J.A.C. 7:1E-2.2(a)4 and 2.16, if the major facility proves to the satisfaction of the Department that such a time period is needed. The rate of such upgrading shall be proposed by the owner or operator as part of the DPCC and DCR plans submitted pursuant to N.J.A.C. 7:1E-4. New equipment and procedures shall meet the standards of N.J.A.C. 7:1E-2 prior to being placed into service.

(c) A non-major facility which adds storage capacity so as to become a major facility shall be considered a major facility.

(d) The Department may require of any major facility which has been granted a period to upgrade, the installation of alternative prevention and/or detection devices such as alarms, so as to minimize the chances of a discharge, and may, in addition, require the owner or operator of such a major facility to demonstrate an enhanced ability to prevent, expeditiously contain and/or clean up and remove a discharge from the portion of the facility to which a time period to upgrade has been granted. If the Department requires the installation of alternative prevention and/or detection devices, the owner or operator shall propose the devices to be used, subject to the Department's approval.

(e) The Department recognizes that the designs of major facilities differ, and, therefore, appropriate methods of discharge prevention are necessarily site-specific. Wherever in these rules a particular method of discharge prevention is mandated, the owner or operator of a major facility may substitute an alternate method if he or she can demonstrate to the satisfaction of the Department that such alternate method will provide protection against discharges at least equivalent to the method it is intended to replace.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (b), inserted reference to existing equipment and procedures in second sentence and added last sentence.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (b), deleted "and 2.2(a)" and inserted "6, and 7," following "N.J.A.C. 7:1E-2.2(a)4,".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (b), substituted "and 2.16" for ", 5, 6, and 7".

Subchapter 2 PREVENTION AND CONTROL OF DISCHARGES AT MAJOR FACILITIES

N.J. Admin. Code § 7:1E-2.1 Scope

This subchapter prescribes the rules of the Department applicable to the owners or operators of major facilities storing, transferring, processing or using hazardous substances. The following shall govern the standards for equipment and procedures utilized at major facilities.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).

N.J. Admin. Code § 7:1E-2.2 Storage

(a) Aboveground storage tanks shall meet the following standards:

1. Aboveground storage tank installations shall be provided with secondary containment or a diversion system, designed and built pursuant to N.J.A.C. 7:1E-2.6.

2. The base underlying the storage tank shall be made of or surfaced with a material impermeable to passage or chemical attack by the stored substance under the conditions of storage prevailing within the tank. Existing storage tanks shall be exempt from this requirement until such time as they may require substantial reconstruction or replacement, or the bottom is being replaced, unless the Department orders a storage tank removed from service because of the likelihood of a discharge. Before such a tank is returned to service, it must meet this requirement.

Pipes leading to and from aboveground storage tanks which enter the tank below the liquid level:

i. Shall be equipped with valves that can be remotely activated or are readily accessible in the event of a leak or discharge, and which are sufficiently close to the tank that they can prevent the contents of the tank from escaping outside the secondary containment area in the event of a pipe failure outside the containment area; and

ii. Shall not penetrate or pass through any walls, dikes, or berms used as secondary containment, unless the impermeability or integrity of the secondary containment is not impaired.

4. Aboveground storage tanks shall undergo integrity testing in accordance with N.J.A.C. 7:1E-2.16.

(b) Underground storage tanks shall meet the requirements of N.J.A.C. 7:14B.

(c) If a storage tank is served by internal heating coils, such coils, the pipes leading to and from them, and the appurtenances to which they connect, must be designed so that any leakage passing from the tank into the heating coil system will be captured and contained in a secondary containment or wastewater treatment system.

(d) Every aboveground storage tank, except as provided at (e) below, shall have a high liquid level audible or visual alarm set to activate at a predetermined level and that is both designed and functions to alert personnel directly responsible for and in control of the filling operation of high liquid level conditions, and one of the following:

1. A high high liquid level pump cutoff device, with a level detector separate from the high liquid level detector, designed to stop flow at a predetermined level; or

2. Direct communication between tank gauger and personnel directly responsible for and in control of the filling operation, such as direct line of sight, or telephone or radio communication.

(e) Owners or operators of aboveground storage tanks of 2,000 gallons or less may meet the requirement of (d) above by having such tanks attended at all times during the filling procedure.

(f) Storage tank overfill lines, or vent lines on storage tanks without overfill lines, where they exist, shall be protected by secondary containment, or directed into other tanks, or other appropriate holding areas.

(g) Mobile or portable storage tanks shall be positioned or located so as to be protected by secondary containment or diversion structures designed and built pursuant to N.J.A.C. 7:1E-2.6. Such storage tanks are subject to the requirements of N.J.A.C. 7:1E-2.9.

(h) Tote, drum, bag, and other small container storage areas shall be equipped with secondary containment or diversion systems designed and built pursuant to N.J.A.C. 7:1E-2.6.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (a), added 7.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (a)4 and 6, inserted references to N.J.A.C. 7:1E-1.6, API 510, and ASTM E1067; in (f), inserted "or vent lines on storage tanks without overfill lines," preceding "where they exist"; substituted "protected by" for "directed into" and inserted "or directed into" preceding "other tanks".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a)1, deleted "an adequate means of" preceding "secondary" and inserted "a"; in (a)2, inserted ", or the bottom is being replaced"; in (a)3, substituted "failure" for "rupture"; rewrote (a)4; deleted (a)5 through (a)7; rewrote the introductory paragraph of (d), (d)1, (g) and (h).

N.J. Admin. Code § 7:1E-2.3 Tank car or tank truck loading or unloading areas

(a) All tank car or tank truck loading or unloading areas employed in the loading or unloading of hazardous substances shall be equipped with secondary containment or a diversion system, designed and built pursuant to N.J.A.C. 7:1E-2.6.

(b) All tank car or tank truck loading and unloading operations shall be conducted in accordance with an SOP prepared and maintained in accordance with N.J.A.C. 7:1E-2.14.

(c) Prior to the filling of any tank car or tank truck, the lowermost drain and all outlets of such vehicle shall be examined to ensure they are closed.

(d) Prior to departure of any tank car or tank truck, the lowermost drain and all outlets of such vehicles shall be closely examined for leakage, and, if necessary, tightened, adjusted, repaired or replaced so as to prevent liquid leakage in transit. All manifolds on tank cars or tank trucks shall be flanged or capped, and valves secured, prior to leaving loading or unloading areas.

(e) A system to prevent tank car or tank truck departure before complete disconnect of loading or unloading lines shall be utilized in loading or unloading areas.

(f) Tank cars in the process of being loaded or unloaded shall be attended at reasonable intervals during the procedure, and shall be attended during topping off.

(g) Tank trucks in the process of being loaded or unloaded shall be attended at all times during the procedure.

(h) A tank car or tank truck is attended when an employee of the facility or of an entity designated by the facility is within 100 feet of the tank car or tank truck and has an unobstructed view of the tank car or tank truck.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.

N.J. Admin. Code § 7:1E-2.4 In-facility pipes for hazardous substances

(a) Each in-facility pipe at a major facility containing a hazardous substance shall be sufficiently marked by lettering, color banding or color coding to enable facility personnel to identify any substance being leaked or discharged from an in-facility pipe.

(b) New buried piping installations shall have a product-sensitive leak detection device, where such devices are state-of-the-art, and shall be either double walled or have secondary containment or diversion systems designed and built pursuant to N.J.A.C. 7:1E-2.6.

(c) Existing buried pipes shall be either:

1. Equipped with product-sensitive leak detection devices, where such devices are state-of-the-art technology; or

2. Where state-of-the-art technology does not exist, inspected, repaired and maintained in accordance with API 570, incorporated herein by reference, or some other industry standard acceptable to the Department.

(d) If a section of buried pipe is exposed for any reason, the owner or operator shall ensure that it is carefully examined for deterioration, and if found to be deteriorated, shall be repaired or replaced. Existing pipes which require substantial reconstruction or replacement shall be upgraded to the standards applicable to new buried piping.

(e) Out-of-service pipes shall be capped or blank-flanged and marked as to origin, or physically removed.

(f) Pipe supports shall be designed and maintained, so as to minimize abrasion and corrosion and allow for expansion and contraction.

(g) If in-facility pipes are elevated across roadways, gate check-in procedures, warning signs or other means shall be used to minimize the chance of a vehicular collision with the pipes.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (c), added second sentence.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (a) and (c); in (b), inserted "either" and deleted "adequate" preceding "secondary"; in (e), substituted "Out-of-service pipes" for "Pipes removed from service"; and in (f), substituted "shall" for "should".

N.J. Admin. Code § 7:1E-2.5 Process areas for hazardous substances

(a) Process areas shall be provided with a means of secondary containment or diversion designed and built pursuant to N.J.A.C. 7:1E-2.6.

(b) Process wastewater and cooling water pipes, plant drains and similar installations which drain into sewers, storm drains, public wastewater treatment plants, watercourses or other routes which drain to the waters of the State shall be engineered so that leaks of hazardous substances will not escape through them to waters of the State.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Section was "Process areas at major facilities for hazardous substances". Rewrote (a); and in (b), deleted the last sentence.

N.J. Admin. Code § 7:1E-2.6 Facility drainage and secondary containment

(a) All portions or areas of a major facility in which hazardous substances are routinely refined, produced, stored, held, handled, processed, or transferred shall be designed so that any leak will be prevented from becoming a discharge.

(b) Secondary containment or diversion structures to prevent leaked hazardous substances from becoming discharges include:

1. Dikes, berms or retaining walls;

2. Curbing;

3. Gutters, culverts and drainage systems;

4. Diversion ponds, lagoons, retention basins, holding tanks, sumps, slop tanks and other collecting systems;

5. Drip pans; or

6. Other equivalent means approved by the Department.

(c) Secondary containment or diversion systems, structures or equipment shall meet the following standards:

1. The secondary containment or diversion system must block all probable routes by which leaked hazardous substances could reasonably be expected to become discharges;

2. The capacity of the secondary containment or diversion system shall include an additional capacity to accommodate six inches of rainwater, if the secondary containment or diversion structure is located such that rainwater could accumulate in it, and shall be:

i. For storage areas, the volume of the largest tank or container within the area;

ii. For tank car or tank truck loading/unloading areas, the volume of the largest compartment in any tank car or tank truck utilizing the area;

iii. For buried pipes, the maximum volumetric flow rate multiplied by the maximum amount of time between the detection of a leak and the shutdown of the pipe; or

iv. For process areas, the volume of the largest piece of equipment in the area, or the maximum volumetric flow rate through the area multiplied by the maximum amount of time between the detection of a leak and the shutdown of the system, whichever is greater;

3. All components of the secondary containment or diversion system shall be made of or lined with impermeable materials, which must be maintained in an impermeable condition. Existing systems for existing aboveground storage tanks are exempt from this requirement if the existing system:

i. Can protect ground water for the period of time needed to clean up and remove a leak, up to the entire volume of the largest tank utilizing the system. The Department may require evidence of the ability of the secondary containment or diversion system to protect ground water, including, but not limited to, soil permeability testing, measurements of the depth to ground water beneath the secondary containment or diversion system, and response times for cleaning up a leak of the entire contents of the largest tank utilizing the system;

ii. Allows the visual detection of leaks; and

iii. Is inspected daily in accordance with N.J.A.C. 7:1E-2.10;

4. No process area, loading or unloading area, diked storage area or other storage area, or secondary containment or diversion system appurtenant thereto shall drain into a watercourse, or into a ditch, sewer, pipe or storm drain that leads directly or indirectly into a watercourse or public sewage treatment plant, unless provision is made to:

i. Retain, by valves or other positive means, any accumulated precipitation until it can be ascertained to the satisfaction of the Department that no hazardous substances will be discharged to the environment; or

ii. Intercept any leaked hazardous substances in a permitted industrial wastewater treatment or pretreatment facility or other facility operated in accordance with a valid and effective NJPDES or NPDES permit;

5. Diversion systems must be designed to handle the reasonably expected flow rate from a leak into them;

6. Incompatible materials shall not be stored within the same containment area if there is a substantial likelihood of them mixing in the event of leakage. This restriction does not apply to process areas where the substances are brought into proximity as part of a production process; and

7. Secondary containment systems shall not be used as backup storage systems nor for any other purpose that would impair their capacity to contain leaks.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Rewrote (c)4i.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In the introductory paragraph of (b), substituted "Secondary" for "Impermeable secondary"; in (c)1, substituted "secondary" for "second"; rewrote (c)2i, in (c)2iv, inserted "maximum" preceding "volumetric"; in (c)3i, inserted the final sentence; rewrote (c)3iii and (c)5; in (c)7, deleted the former first sentence; and deleted (d).

N.J. Admin. Code § 7:1E-2.7 Marine transfer facilities

(a) All rules and regulations of the U.S. Coast Guard which apply to oil transfer facilities, in particular 33 CFR 154 and 156, are herein expressly adopted by reference, and are further made applicable as well to all marine transfer facilities which transfer in the liquid state any hazardous substances other than oil.

(b) If oil or other non-miscible lighter-than-water hazardous substances are transferred at the facility, there shall be kept available a length of flotation boom or other containment device sufficient to totally enclose a vessel while engaged in the transfer of hazardous substances from a vessel to the facility or from the facility to a vessel. When transferring between vessels, the containment device shall be capable of encircling both vessels.

(c) A containment device shall be deployed prior to commencing the transfer of any non-miscible lighter-than-water hazardous substance with a flash point in excess of 100 degrees Fahrenheit (38 degrees centigrade) as measured by ASTM D93, incorporated herein by reference, when current and wind conditions permit the effective use of such devices and the device can be safely deployed without endangering any personnel, any vessel, or obstructing any shipping channel. This provision does not apply to the transfer of any hazardous substance to be used as a fuel or a lubricant by the vessel.

(d) When conditions prohibit the immediate deployment of a containment device, such containment device shall be maintained on a standby basis during the transfer for rapid deployment in the event of a discharge.

(e) When transferring hazardous substances to or from a vessel that is moored to a dock, the containment device is to encircle the entire vessel except for the area of the dock the vessel sits adjacent to, if the dock is capable of acting as an effective barrier.

(f) If a containment device is required by the Department to be in place during a transfer of a hazardous substance, the device shall be deployed not less than 15 feet from the vessel prior to commencement of the transfer operation, except in the case where a dock may act as part of the containment, and shall be maintained in a manner that minimizes the potential for any discharged hazardous substance from leaving the contained area.

(g) Transfer operations shall not commence, or if commenced shall be discontinued immediately, upon detection of any of the following:

1. National Weather Service forecasts predict for the vicinity of the facility gale force winds, heavy precipitation or other storm conditions, and the person in charge determines that a transfer cannot be accomplished without increased risk of discharge, or if such weather conditions occur after transfer operations have been commenced;

2. Fire occurs in the vicinity of the transfer operation or a nearby portion of the transfer facility unless such a transfer is necessary to prevent further endangerment of personnel, the vessel or facility;

3. At any time the transfer system is functioning contrary to the standard operating procedures of the facility;

4. A break occurs in the transfer system;

5. There is an apparent discrepancy between the quantity of hazardous substance transferred and received;

6. The communication system is not operative;

7. Hazardous substances are observed in the water near any transfer component, unless it can be ascertained that the hazardous substances are not being discharged from the vessel or the marine transfer facility involved in the transfer operation; or

8. A discharge occurs during transfer. Transfer shall not be resumed until after the discharge has been reported to the Department, and the Department or Federal on-scene coordinator under the National Oil and Hazardous Substances Pollution Contingency Plan pursuant to 40 CFR 300 is satisfied that adequate steps have been taken to contain the discharge and to prevent further discharges. Under certain circumstances, it may be necessary to continue transfer operations even though a discharge has occurred, for example, in order to off-load the contents of a vessel which is leaking.

(h) Prior to the removal of a deployed containment device, all discharged hazardous substances contained by the device shall be properly cleaned up and removed.

(i) Any containment device deployed shall be retrieved and properly secured by the owner or operator upon completion of the transfer, or at such time as it is no longer needed to prevent the spread of or to divert a discharge. If the containment device is contaminated, it shall be properly cleaned or disposed of.

(j) A copy of the requirements at N.J.A.C. 7:1E-5.3(a) and (c), printed in a conspicuous format, shall be displayed by the owner or operator at any transfer areas and the operations center.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (b), added the last sentence; deleted former (c); recodified (d) and (e) as (c) and (d); in (c), substituted "ASTM D93, incorporated herein by reference" for "the Penske-Martens closed cup flash test (ASTM D-93, incorporated herein by reference)"; recodified (f) and (g) as (e); rewrote (e); recodified (h) through (k) as (f) through (i); in (g)1, substituted "precipitation" for "rain, sleet, snow"; in (g)8, inserted "Oil and Hazardous Substances Pollution" and substituted "300" for "1510"; rewrote (h) and (i); and added (j).

N.J. Admin. Code § 7:1E-2.8 Illumination

(a) Major facilities which transfer hazardous substances to or from vessels between the hours of sunset and sunrise shall perform all such transfers using fixed lighting that shall adequately illuminate:

1. Each transfer connection point in use at the facility;

2. Each transfer connection point in use on the vessel;

3. Each hazardous substances transfer work area at the facility; and

Each hazardous substances transfer work area on the vessel.

(b) Major facilities which transfer hazardous substances to or from vessels between the hours of sunset and sunrise shall perform all such transfers using fixed or portable lighting that shall adequately illuminate surface area of the water surrounding the vessel sufficient to determine that no discharge is occurring.

(c) Adequate lighting shall mean any lighting which complies with U.S. Coast Guard rules or regulations applicable to oil transfers facilities, particularly 33 CFR 154.570.

N.J. Admin. Code § 7:1E-2.9 Flood hazard areas

(a) Hazardous substances stored within the tidal floodplain as delineated by the Federal Emergency Management Agency or the floodway of any watercourse as delineated by the Department at N.J.A.C. 7:13-3 shall be adequately protected so as to prevent such hazardous substances from being carried off by or being discharged into flood waters.

(b) Hazardous substances stored within an area known by the owner or operator of the major facility to be subject to a high probability of flooding or washout shall be adequately protected so as to prevent such hazardous substances from being carried off by flood waters or being discharged.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Recodified existing paragraph as (a); rewrote (a); and added (b).

N.J. Admin. Code § 7:1E-2.10 Visual inspections and monitoring

(a) All equipment and portions of the major facility in service using hazardous substances, as well as all cleanup and removal equipment and supplies, shall be visually inspected in accordance with standard operating procedures pursuant to N.J.A.C. 7:1E-2.14. Visual inspections shall be performed, at a minimum, according to the following schedule:

1. Prior to each marine transfer for adequacy, deterioration, leaks or discharges, all transfer area lighting and all aboveground transfer valves, pumps, flanges, flexible hoselines and connections, unless they are not readily accessible, that are to be used in the transfer;

2. Once daily for integrity and leaks, all not impermeable secondary containment systems and diversion systems for aboveground storage tanks, and the aboveground storage tanks within these systems;

3. Once daily or prior to each use, whichever is less frequent, for integrity, deterioration and leaks, loading or unloading areas, including flexible hoselines;

4. Once weekly for integrity and leaks, process areas;

5. Once monthly for integrity and leaks, all other aboveground storage tanks, all other storage areas, all other secondary containment or diversion systems, and all aboveground pipes; and

6. Once quarterly:

i. For integrity and leaks, all other aboveground valves, pumps, flanges, connections and equipment;

ii. For integrity, all security fences and locks; and

iii. For adequacy and location, all cleanup and removal equipment and supplies.

(b) Records shall be kept for all visual inspections, in accordance with N.J.A.C. 7:1E-2.15. These records shall document the date, person performing the inspection, any problems found, including if no problems were found, and the subsequent correction of such problems.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Rewrote (a)6.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a), inserted "as well as all cleanup and removal equipment and supplies,"; rewrote (a)6 and (b); and deleted (c).

N.J. Admin. Code § 7:1E-2.11 Housekeeping and maintenance

(a) Hazardous substances shall be kept in containers suitable for their storage or processing at all times except when being transferred between containers. Containers shall be compatible with the substances stored therein and resistant to chemical attack by the substances. Hazardous substances shall be kept protected from the elements and the possibility of leakage.

(b) Tanks, pipes, valves, glands, drums or other equipment leaking hazardous substances shall be promptly repaired, replaced or taken out of use following detection of a leak, unless provision is made to capture and contain leaking hazardous substances in a drip pan or other appropriate containment device. If such provision is made, the leaking item shall be repaired, replaced or taken out of use within 15 days after the leak is detected unless the shutdown of a process unit is necessary. A leak shall be repaired at the earliest period in which either the process is not in operation or the particular unit is out of service, whichever occurs first.

(c) Cleanup of all leaks or discharges of hazardous substances shall begin promptly upon detection. Loose quantities of hazardous substances shall not be allowed to persist on grounds, floors, walls or equipment, or any other places within the facility.

(d) The facility shall keep on hand, in convenient locations, adequate quantities of sorbent materials, chemical neutralizing agents or other materials as needed, sufficient to contain and clean up those leaks or discharges that facility personnel will respond to, as described in the DCR plan in accordance with N.J.A.C. 7:1E-4.3(b)7.

(e) The facility shall maintain an adequate supply of protective safety equipment, such as chemically resistant coveralls, boots, or respiratory protection, in convenient locations for use by any personnel who are required to clean up leaked or discharged hazardous substances. Where protective safety equipment is required by any regulation of the Federal Occupational Safety and Health Administration, compliance with such regulation shall be deemed to fulfill this requirement.

(f) Secondary containment or diversion systems shall be maintained in good repair, free of accumulated debris, and free of cracks through which hazardous substances could be discharged.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (d); in (e), substituted "respiratory protection" for "gas masks"; in (f), inserted "free of accumulated debris, and".

N.J. Admin. Code § 7:1E-2.12 Employee training

(a) Owners or operators of major facilities shall implement an appropriate program for training their employees involved in the handling of hazardous substances and shall maintain a written description of the program.

(b) The training program shall include, at the minimum, the following:

1. A written job description which includes the duties and responsibilities relating to hazardous substances for each position, and training necessary to qualify for the position;

2. Specified minimum time periods of in-house training for each position covering orientation, specific hazardous substances training and on-the-job training, and periodic refresher training; and

3. Procedures to determine whether an employee has demonstrated the ability to carry out the duties and responsibilities of a specific position.

(c) The training that all employees involved in the handling of hazardous substances will receive shall include:

1. General orientation and initial training of new employees before assignment to hazardous substance operations, which shall include instruction on the general site rules and practices, and safety procedures;

Job-specific training for new or newly assigned employees involved with hazardous substances, consisting of classroom and/or on-the-job training, as appropriate, which covers:

i. Standard operating procedures, including a detailed review of the hazardous substance safety data sheets, the safe handling practices for the hazardous substance, the hazards of the operation involving the hazardous substance, and the application of standard operating procedures to actual conditions;

ii. Safety, equipment, and procedures used in the cleanup and removal of a specific hazardous substance;

iii. Procedures regarding fires, leaks and discharges; and

iv. Equipment familiarization;

3. Training on updated or new standard operating procedures; and

Refresher training at least once a year, which shall present an overview and updated information pertaining to the employee's duties and responsibilities related to hazardous substances, and which can be combined with such training required pursuant to any other State or Federal requirement.

(d) The training program shall specify the qualifications required for the personnel responsible for training employees working with hazardous substances.

(e) Documentation of all training, including final qualifying activities, shall be kept in accordance with N.J.A.C. 7:1E-2.15 for each employee and shall include identification of all personnel trained, subjects covered and training dates.

(f) Owners or operators shall have procedures to ensure that all employees utilized by outside contractors have received site-specific information covering emergency and safety procedures.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (b)1, deleted "and the education, experience" following "each position,"; deleted former (b)2; recodified former (b)3 as (b)2; in (b)2, deleted "trainee evaluation, final qualification," preceding "and periodic" and the former last sentence, and inserted "and" at the end; added new (b)3; rewrote (c)2 through (c)4; deleted (d); recodified former (e) through (g) as (d) through (f); and rewrote (e).

N.J. Admin. Code § 7:1E-2.13 Security

(a) Major facilities shall be adequately illuminated so that personnel on the premises can detect intruders, leaks or discharges.

(b) Major facilities shall have security sufficient to prevent unauthorized persons from gaining access to hazardous substances. This security may consist, for example, of:

1. Fencing adequate to prevent unauthorized entry of all portions or areas within which hazardous substances are stored, processed, transferred or used, with entrance gates locked and/or guarded when the facility is unattended, and either locked, guarded or under observation by personnel at all other times; or

2. For aboveground storage tanks, all of the following:

i. Valves which will permit escape of a tank's or other container's contents to the surface securely locked in the closed position when not in use;

ii. Starter controls on all pumps locked in the "off" position when the pumps are not in use unless the controls are located at a site accessible only to authorized personnel, which site is itself attended or locked; and

iii. The open ends of all pipes securely capped or blank-flanged when not in use for an extended time.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a), deleted "during hours of darkness" from the end; and in (b)1, deleted "(full fencing on land)" following "entry".

N.J. Admin. Code § 7:1E-2.14 Standard operating procedures

(a) The owner or operator shall have written standard operating procedures for all operations involving hazardous substances. They shall be in English in a manner understandable by employees of the major facility and shall also be written in the language of fluency of employees utilizing those SOPs not fluent in English.

(b) A copy of the standard operating procedures shall be readily available to employees.

(c) A copy of safety data sheets or fact sheets for each hazardous substance used or stored at the facility shall be readily available to employees.

(d) The standard operating procedures shall include, at a minimum, the following:

1. A description of the operation, including all applicable requirements from this subchapter;

2. Procedures for visual inspection of equipment;

3. Procedures and conditions for normal operation;

4. A description of leak monitoring equipment and alarms; and

5. A description of leak or discharge conditions which could occur from the operation, including the control and mitigation procedures to be followed to reduce the impact of the leak or discharge conditions.

(e) As appropriate for the operation being described, the following items, in addition to those in (d) above, shall be included in the standard operating procedure:

1. Simplified process flow sheets, showing flows, temperatures and pressures;

2. A description of the most frequent abnormal conditions, including the control and mitigating procedures to be followed to return to normal conditions;

3. Pre-startup procedures;

4. Startup procedures including conditions to be maintained during startup;

5. Shutdown procedures including provisions for normal and emergency shutdown and details on the condition of equipment to be maintained after shutdown;

6. Procedures to perform and inspect maintenance work; and

7. Log sheets and checklists.

(f) A generic SOP may be written when more than one piece of equipment designed to perform the same function is located at the facility. Such a generic SOP must cover all hazardous substances utilized with all the equipment and must delineate any special conditions associated with a specific piece of equipment or hazardous substance.

(g) Modifications to the standard operating procedures shall be incorporated into the standard operating procedures prior to their implementation.

(h) A current index of the standard operating procedures, including title(s), identification number(s) and latest date(s) of issue shall be maintained and readily available.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (d), the introductory paragraph of (e), (e)6, (e)7 and (h).

N.J. Admin. Code § 7:1E-2.15 Recordkeeping

(a) The owner or operator of a major facility shall maintain the following records for three years:

1. Employee training;

2. Drills for discharge prevention;

3. Inspections of cleanup and removal equipment and supplies; and

4. Facility inventories.

(b) The owner or operator of a major facility shall maintain the following records for 10 years:

1. Documentation of discharges pursuant to N.J.A.C. 7:1E-5.3(e); and

2. Confirmation reports on discharges pursuant to N.J.A.C. 7:1E-5.8(c).

(c) The owner or operator of a major facility shall maintain records of inspection and repair for 10 years or the lifetime of the equipment, device, or structure, whichever is shorter, for:

1. All equipment, and detection or monitoring, prevention or safety devices related to discharge prevention and response; and

2. All structures other than aboveground storage tanks.

(d) For aboveground storage tanks, the owner or operator of a major facility shall maintain:

1. Records of daily visual inspections, conducted pursuant to N.J.A.C. 7:1E-2.10(a)2, for 10 years or the lifetime of the tank, whichever is shorter;

2. Records of monthly visual inspections, conducted pursuant to N.J.A.C. 7:1E-2.10(a)5 or the appropriate integrity testing standard, for 10 years or the lifetime of the tank, whichever is shorter; and

3. All other records of integrity testing, inspection, and repair for the lifetime of the tank.

(e) All records shall be available for inspection upon the request of the Department or appropriate local agencies.

(f) In the event of the loss or destruction of an original record, the owner or operator shall maintain a copy of the records in a format that is adequately retrievable, such as an electronic format like a server or cloud, or a second set of hard copies located in a separate space.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (b), amended N.J.A.C. reference.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.

N.J. Admin. Code § 7:1E-2.16 Integrity testing

(a) (Reserved).

(b) Aboveground storage tanks with a storage capacity greater than 2,000 gallons installed or placed into service on or after July 22, 1990, and all appurtenant piping to the first valve shall be subject to integrity testing prior to being placed into service, in accordance with the following:

1. New field-erected storage tanks shall be tested in accordance with the standard used for their construction.

2. Existing storage tanks being returned to service or relocated shall be tested in accordance with the applicable protocol at (d) through (i) below.

3. Shop-built storage tanks shall be tested after installation on site to ensure the integrity of the tank and all connections to it, using a test such as a static head test.

(c) Records of all integrity testing shall be kept in accordance with N.J.A.C. 7:1E-2.15.

(d) Field-erected steel aboveground storage tanks with a storage capacity greater than 2,000 gallons shall undergo integrity testing in accordance with the following:

Tanks operated at atmospheric pressure shall follow API 653 and the schedule and series of tests and inspections established in that standard, except that similar service and risk based inspection scheduling contained in API 653 are not permitted.

Tanks operated under pressure shall follow API 510 or ASME Section VIII, as applicable, and the schedule and series of tests and inspections established in the applicable standard, except that similar service and risk-based inspection scheduling set forth at API 510 are not permitted.

(e) Shop-built steel aboveground storage tanks with a storage capacity greater than 2,000 gallons shall undergo integrity testing in accordance with the following:

1. Tanks operated at atmospheric pressure shall follow API 653 or SP001, incorporated by reference, and the schedule and series of tests and inspections established in the applicable standard, except that similar service and risk-based inspection scheduling contained in API 653 are not permitted.

2. Tanks operated under pressure shall follow API 510 or ASME Section VIII and the schedule and series of tests and inspections established in the applicable standard, except that similar service and risk-based inspection scheduling set forth at API 510 are not permitted.

(f) Fiberglass reinforced plastic (FRP) aboveground storage tanks with a storage capacity greater than 2,000 gallons shall undergo integrity testing every five years consisting of acoustic emission testing, in accordance with ASTM E1067, in combination with internal and external inspections of the tank and all appurtenant structures by an experienced, qualified inspector.

(g) Homogenous plastic tanks with a storage capacity greater than 2,000 gallons shall undergo integrity testing every five years consisting of internal and external visual inspections of the tank and all appurtenant structures by an experienced, qualified inspector.

(h) For aboveground storage tanks with a storage capacity greater than 2,000 gallons that do not fall into one of the categories outlined above, the owner or operator shall perform integrity testing conducted by an experienced, qualified inspector every five years in accordance with the following, as appropriate:

1. A shell thickness test performed to an industry standard appropriate to the material and configuration of the tank, and capable of detecting corrosion, erosion, or other wall thinning to less than a predetermined minimum thickness to ensure sufficient structural strength;

2. A bottom thickness test, performed to an industry standard appropriate to the material and configuration of the tank, and capable of detecting corrosion, erosion, or other bottom thinning to less than a predetermined minimum thickness to ensure sufficient structural strength;

3. Visual inspection of the interior of the tank checking for corrosion, cracks, and deteriorations;

4. Visual inspection of the exterior of the tank, checking for corrosion, distortions, cracks, and leaks; and

5. Visual inspection of the foundation or supports and ancillary equipment, such as inlet and outlet pipes and valves, checking for settlement, cracks, leaks, corrosion, and other indications of structural problems.

(i) If none of the protocols for integrity testing outlined in this section are practicable for a given aboveground storage tank with a storage capacity greater than 2,000 gallons, the owner or operator may propose a protocol to the Department, in accordance with N.J.A.C. 7:1E-1.11(e).

(j) If a tank has been tested or inspected as required by (a) through (i) above and fails to meet the applicable standards as to structural integrity or where a condition has been determined to exist for which there is no standard as set forth in (a) through (i) above, but which, in the opinion of the person performing the tests or inspection as set forth in the report, constitutes a condition which will threaten structural integrity, the tank shall be emptied and remain empty until it is repaired or replaced. Conditions threatening structural integrity may include, but are not limited to, wall thinning, leaks, or extensive corrosion, pitting, or cracking.

(k) The tank integrity test report or checklist, which must be kept for the lifetime of the tank, shall include, at a minimum, the following information:

1. Name of the major facility;

2. Tank identification;

3. Test method used;

4. Date of the test or inspection;

5. Date the report was completed;

6. Results, including calculations and the date of the next test;

7. Recommendations, including any that necessitate immediate action;

Name and affiliation of the person(s) who prepared the report; and

9. Inspector's qualifications, including, but not limited to, API or STI certification.

(l) Within 120 days of receipt of the completed tank integrity test report or checklist or before an out-of-service tank is placed in service, whichever is later, the owner/operator shall review the inspection findings and recommendations, establish a repair scope, if needed, and determine the appropriate timing for repairs, monitoring, and/or maintenance activities. The owner/ operator shall implement the repair schedule, document, in writing, the disposition of all recommended repairs and monitoring, and provide reasons for recommended actions that are delayed or deemed unnecessary.

History

• New Rule, R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).

Subchapter 3 TRANSMISSION PIPELINES

N.J. Admin. Code § 7:1E-3.1 Scope

This subchapter prescribes the rules of the Department for information to be submitted concerning transmission pipelines. The following rules shall govern the preparation and submission of registrations.

N.J. Admin. Code § 7:1E-3.2 Registration of transmission pipelines

(a) By February 1, 1992, and by each February 1 at five-year intervals thereafter, the owner or operator of a transmission pipeline shall submit the following information to the Department pursuant to N.J.A.C. 7:1E-3.5, on forms provided by the Department:

1. The business name(s), address and telephone number of the owner or operator of the facility;

2. The name or designation of the transmission pipeline, and the name, title, email address, and telephone number of a contact person for the transmission pipeline;

3. The name and business address of the owner or operator's registered agent;

4. The storage capacity and location, including street address and municipality, of any facility;

5. A description of the hazardous substances, including maximum quantities of each substance stored at any one time, which are stored, held, handled, transferred or transported by the facility;

6. The name and address, including street address and municipality, of all facilities served by the transmission pipeline;

7. The transfer capacity and the average daily throughput, on an annual basis, of the transmission pipeline for each hazardous substance;

8. An accurate map or maps, electronically or in hard copy, as the Department directs and in the format prescribed at N.J.A.C. 7:1E-4.10(c), showing the location of each of the owner or operator's pipeline facilities, storage areas, transfer areas, or other structures in or on which hazardous substances are stored or handled, and the location at which the pipeline enters or leaves the State;

9. An inventory of all types of pipe used for the transmission of hazardous substances, including a history of major repairs, major maintenance and major leaks from all pipes; and

10. Any certifications required pursuant to N.J.A.C. 7:1E-4.11(b).

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Added new (a)2; recodified former (a)2 through (a)4 as (a)3 through (a)5; rewrote (a)4 and (a)5; added new (a)6; recodified former (a)5 through (a)8 as (a)7 through (a)10; rewrote (a)8; and in the address in (c), substituted "Release" for "Discharge".
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-3.3 Standards

All transmission pipelines shall conform to 49 CFR 195, "Transportation of Hazardous Liquids by Pipeline," and any future supplements and amendments thereto.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Inserted "Hazardous".

N.J. Admin. Code § 7:1E-3.4 Discharge cleanup information

(a) By February 1, 1992, and by each February 1 at five-year intervals thereafter, the owner or operator of a transmission pipeline shall submit the following information to the Department pursuant to N.J.A.C. 7:1E-3.5:

1. A summary of the action plan used in responding to, and minimizing health and environmental dangers from, fires, explosions or discharges, including the deployment of personnel and equipment, the chain of command for an emergency response action, and notification procedures pursuant to N.J.A.C. 7:1E-5;

2. A list of cleanup and removal equipment and supplies to which the transmission pipeline has access through ownership, contract, or others means, including, but not limited to, vehicles, vessels, pumps, skimmers, booms, chemicals, and communications devices. A copy of all current contracts or agreements between the owner or operator and a discharge cleanup organization for emergency response service shall be included;

3. A list of the trained personnel who are available to operate such equipment and a brief description of their qualifications, and whether personnel are employed by the owner or operator or by a discharge cleanup organization. In lieu of supplying a list of names, the owner or operator may supply a list of job titles of employees who will be assigned to operate containment and removal equipment, and a statement of the minimum qualifications that will be required of each employee so assigned;

4. The name, title and 24-hour business telephone number of facility's response coordinator or other person authorized to hire contractors and release funds for discharge response, containment, cleanup and removal. A response coordinator or alternate shall be available at all times; and

5. Procedures for determining the recycling or disposal options for hazardous substances or contaminated soil, debris, and so forth gathered during cleanup and removal activities.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a)2, inserted the last sentence; in (a)3, inserted ", and whether personnel are employed by the owner or operator or by a discharge cleanup organization"; and in (a)5, substituted "activities" for "operations".

N.J. Admin. Code § 7:1E-3.5 Submission of registration and discharge cleanup information

(a) Any change in the information provided pursuant to N.J.A.C. 7:1E-3.2(a) or 3.4(a) shall be reported to the Department within 60 days.

(b) The owner or operator of a new transmission pipeline shall submit the information in accordance with N.J.A.C. 7:1E-3.2(a) and 3.4(a) to the Department at the address specified at (c) below within 60 days after commencement of operation of the transmission pipeline.

(c) The information required pursuant to this subchapter shall be submitted electronically or in hard copy, as the Department directs. Hard copies, if required, shall be sent to:

Bureau of Release Prevention

New Jersey Department of Environmental Protection

PO Box 420

Mail Code 22-03D

Trenton, New Jersey 08625-0420

Attention: Pipeline Registration

History

• Amended by 57 N.J.R. 1253(b), effective 6/16/2025

Subchapter 4 PLANS

N.J. Admin. Code § 7:1E-4.1 Scope

This subchapter establishes the requirements for discharge cleanup and removal activities at major facilities. It prescribes the rules of the Department for information to be submitted in discharge prevention, containment, and countermeasure plans, and discharge cleanup and removal plans. The following rules shall govern the preparation and submission of such plans.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.

N.J. Admin. Code § 7:1E-4.2 Discharge prevention, containment, and countermeasure plans

(a) The owner or operator of a major facility shall:

1. Prepare a DPCC plan demonstrating compliance with the standards in N.J.A.C. 7:1E-2; and

2. Appoint a facility contact who shall be responsible for ensuring compliance with the DPCC plan and this chapter. The facility contact shall be responsible for submitting all required plans and reports to the Department.

(b) The DPCC plan shall contain the following general information:

1. The name, telephone number and location of the facility including street and mailing address, county, municipality, and tax lot and block number;

2. The name(s), telephone number(s) and business address(es) of the owner or operator of the facility;

3. The name, title, telephone number, email address, and business address of the facility contact;

4. The name and business address of the owner's or operator's registered agent, if applicable;

5. If the facility is served by or operates a transmission pipeline or pipelines, the name of the transmission pipeline(s), and the name, mailing address(es), email address, and the telephone number(s) of its owner or operator of each transmission pipeline;

6. A brief description of the facility;

7. A general site plan, in the format prescribed in N.J.A.C. 7:1E-4.10;

8. A drainage and land use map, in the format prescribed in N.J.A.C. 7:1E-4.10;

9. Topographical maps, in the format prescribed in N.J.A.C. 7:1E-4.10;

10. The anticipated date the facility will begin to operate as a major facility; and

11. A list of discharges that have occurred at the facility in the 36 months preceding the date of the plan submission, including those discharges that were not immediately reported to the Department pursuant to N.J.A.C. 7:1E-5.3(e). The list shall include the substance(s) discharged, the quantity(ies) discharged, the location(s) of the discharge(s), the case number(s) assigned by the Department for those discharges that were reported pursuant to N.J.A.C. 7:1E-5.3(a), and corrective actions taken.

(c) The DPCC plan shall include, at a minimum, the following technical information, in the following order or indexed to this order:

1. A description of all aboveground storage tanks, addressing all standards under N.J.A.C. 7:1E-2.2, including, but not limited to:

i. Tank identification, such as name or number, and location;

ii. Material of construction and tank orientation, whether horizontal or vertical;

iii. Tank size and contents;

iv. Overfill protection measures; and

v. The schedule for integrity testing, pursuant to N.J.A.C. 7:1E-2.16, including at a minimum the date(s) of the last test(s) and inspection(s) and the date(s) of the next test(s) and inspection(s), and the schedule or criteria for scheduling maintenance or reconstruction;

2. A description of underground storage tanks, addressing all standards under N.J.A.C. 7:1E-2.2, including, but not limited to:

i. Location and identification, such as name or number; and

ii. Tank size and contents;

3. A description of all other storage, not covered at (c)1 or 2 above, addressing all standards pursuant to N.J.A.C. 7:1E-2.2, including, but not limited to:

i. Location and identification, such as name or number;

ii. The type and size of containers and storage capacity in each storage area; and

iii. The substances stored;

4. A description of any tank car or tank truck loading/unloading area, addressing all standards under N.J.A.C. 7:1E-2.3, including, but not limited to:

i. Location and identification, such as name or number;

ii. The size of the largest compartment in any tank car or tank truck utilizing the area; and

iii. The hazardous substances loaded or unloaded;

5. A description of in-facility pipes, addressing all standards at N.J.A.C. 7:1E-2.4, including, but not limited to:

i. Location and identification, such as name or number;

ii. The marking system used;

iii. Any product-sensitive leak detection devices in use on buried piping;

iv. Any maintenance and repair program for buried pipes, with the testing schedule, including the date(s) of the last test(s) and inspection(s) and the date(s) of the next scheduled test(s) and inspection(s); and

v. Procedures or measures for minimizing the chance of a vehicular collision with overhead pipes;

6. A description of process areas, addressing all standards under N.J.A.C. 7:1E-2.5, including, but not limited to:

i. Location and identification; and

ii. The largest vessel or maximum volumetric flow rate of hazardous substances in the area;

7. A description of all secondary containment or diversion systems, addressing all standards under N.J.A.C. 7:1E-2.6, including, but not limited to, their capacity and materials of construction. This description can be included with the information required pursuant to (c)1, 2, 3, 4, 5 and 6 above, as appropriate;

8. A description of marine transfer areas, including materials transferred, booming operations pursuant to N.J.A.C. 7:1E-2.7, and the fixed and portable lighting in use in marine transfer areas pursuant to N.J.A.C. 7:1E-2.8;

9. A description of any flood hazard areas within the facility's boundaries, and any measures implemented to protect hazardous substances from flood waters and washout, pursuant to N.J.A.C. 7:1E-2.9;

10. A description of all visual inspection and monitoring procedures, pursuant to N.J.A.C. 7:1E-2.10;

11. An outline of the housekeeping and maintenance program, pursuant to N.J.A.C. 7:1E-2.11;

12. A description of the personnel training program, including types of training given, time periods required for various phases of training, and training procedures, and procedures for instructing of contractors, pursuant to N.J.A.C. 7:1E-2.12;

13. A description of the physical security measures, including lighting, at the facility, pursuant to N.J.A.C. 7:1E-2.13;

14. A current index of all standard operating procedures that have been written pursuant to N.J.A.C. 7:1E-2.14; and

15. A description of the recordkeeping system employed by the facility, pursuant to N.J.A.C. 7:1E-2.15.

(d) The DPCC plan may include a schedule, to be approved by the Department, for upgrading any equipment or those portions of the facility that existed prior to the submission of the owner or operator's DPCC plan to the Department, to meet the requirements of N.J.A.C. 7:1E-2, excluding N.J.A.C. 7:1E-2.2(a)4 and 2.16. All equipment and those portions of the facility installed after the approval of a DPCC plan must meet all applicable standards in these rules.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Recodified from N.J.A.C. 7:1E-4.3 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former section, "Registration of discharge cleanup organizations", repealed.
• Administrative change.
• See: 32 N.J.R. 1796(a).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (b)1, deleted reference to coordinate centroid; in (b)4, inserted N.J.A.C. reference in first sentence and deleted last sentence; and in (d)1 inserted reference to internal visual inspections.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (d), rewrote the first sentence of 1 and rewrote 3; in (e), substituted "5, 6 and 7" for "and (a)" following the N.J.A.C. reference"; in (f)1, added N.J.A.C. reference.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-4.3 Discharge cleanup and removal plan

(a) The owner or operator of a major facility shall appoint a response coordinator.

(b) The owner or operator of a major facility shall prepare and implement a DCR plan containing, at a minimum, the following information, in the following order or indexed to this order:

1. The name, title, email address, and 24-hour business telephone number of the facility's response coordinator or other person authorized to hire contractors and release funds for discharge response, containment, cleanup, and removal. A response coordinator or alternate shall be available at all times;

2. The chain of command for an emergency response action;

Notification procedures, pursuant to N.J.A.C. 7:1E-5;

4. Provisions for a simulated emergency response drill conducted at least once per calendar year to determine the currency and adequacy of, and personnel familiarity with, the emergency response plan and this DCR plan. When possible, this annual drill can be combined with other emergency response drills. This drill shall:

i. Include the emergency response team and other personnel handling hazardous substances;

ii. Be based on distinct, realistic scenarios from year to year, ranging from best- to worst-case scenarios, involving hazardous substances stored, handled, processed, or transferred at various locations throughout the facility. Facility owners and operators shall avoid repeating drills in the same storage, process, handling or process area in consecutive years. Worst-case scenarios shall be exercised occasionally;

iii. Not be a table-top drill in consecutive years; and

iv. Be documented. Documentation must include the date of the drill, personnel involved, a description of the scenario, the type of drill, chronology of events, a written critique, any recommendations for changes to the facility's procedures, operations, or engineering controls as a result of the drill, and a schedule for implementing those changes. The owner or operator shall retain the documentation as required at N.J.A.C. 7:1E-2.15.

5. A list of types and minimum quantities of cleanup and removal equipment and supplies to which the facility has access through ownership, contract, or others means, including, but not limited to, vehicles, vessels, pumps, skimmers, sorbents, hand tools, booms, chemicals, and communications devices, and indicating if access is through ownership, contract, or other means. Each major facility shall have available to it, by ownership or by arrangement with a discharge cleanup organization, adequate equipment to clean up any discharge that may occur at the facility. A copy of all current contracts or agreements between the owner or operator and a discharge cleanup organization for emergency response service shall be maintained at the facility or with the facility's registered agent, as appropriate, and shall be available to the Department for review upon request;

6. A list of the trained personnel who are available to operate such equipment and a brief description of their qualifications, and whether personnel are employed at the facility or by a discharge cleanup organization. Each major facility shall have available to it, by ownership or by arrangement with a discharge cleanup organization, adequate personnel to clean up any discharge that may occur at the facility. In lieu of supplying a list of names, the owner or operator may supply a list of job titles of employees who will be assigned to operate containment and removal equipment, and a statement of the minimum qualifications that will be required of each employee so assigned;

7. On-site response measures, including response to leaks, and the types and sizes of discharges that facility personnel will respond to;

8. Off-site response measures, including:

i. Identification of and protection and mitigation measures for off-site residential, environmentally sensitive, or other areas prioritized based on use, seasonal sensitivity, or other relevant factors. The mapping required by N.J.A.C. 7:1E-4.2(b)8 and 9 may serve as the identification;

ii. Provisions for an environmental assessment of the impact of any discharge; and

iii. A certification pursuant to N.J.A.C. 7:1E-4.11(f), by a marine biologist or ecologist or freshwater equivalent and ornithologist acceptable to the Department;

9. Procedures for determining the recycling or disposal options for hazardous substances or contaminated soil, debris, and so forth, gathered during housekeeping or cleanup and removal activities;

10. A copy of a current agreement with the local emergency planning committee or committees that coordinates the emergency responses of the parties to the agreement; and

11. All financial responsibility documents required pursuant to N.J.A.C. 7:1E-4.4 in accordance with N.J.A.C. 7:1E-4.4(e) or Appendix B.

History

• Recodified from N.J.A.C. 7:1E-4.4 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.3, "Discharge prevention, containment and countermeasure plans", recodified to N.J.A.C. 7:1E-4.2.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (a)9, substituted "a current" for "an" preceding "agreement".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.

N.J. Admin. Code § 7:1E-4.4 Financial responsibility

(a) The owner or operator of a major facility shall demonstrate financial responsibility for cleanup and removal activities.

(b) The owner or operator of a major facility shall demonstrate financial responsibility, as follows:

1. If the largest container in which hazardous substances are utilized onsite is less than or equal to 50,000 gallons, the minimum amount of financial responsibility shall be $ 1,000,000 per occurrence and $ 2,000,000 annual aggregate.

2. If the largest container in which hazardous substances are utilized onsite is 50,001 to 500,000 gallons, the minimum amount of financial responsibility shall be $ 2,000,000 per occurrence and $ 4,000,000 annual aggregate.

3. If the largest container in which hazardous substances are utilized onsite is greater than 500,000 gallons, the minimum amount of financial responsibility shall be $ 4,000,000 per occurrence and $ 8,000,000 annual aggregate.

4. However, if the owner or operator establishes to the satisfaction of the Department that a lesser amount will be sufficient to protect the environment and public health, safety, and welfare, the Department may accept evidence of financial responsibility in such lesser amount. In determining the sufficiency of the amount of financial responsibility, the Department may consider factors including, without limitation, the nature and quantity of the hazardous substances that may be present at the facility, and the proximity and nature of environmentally sensitive areas located near the facility.

(c) The required per occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or operator.

(d) Financial responsibility may be established by any one, or by any combination, of the following mechanisms:

1. Financial test of self-insurance;

2. Guarantee;

3. Insurance or risk retention group coverage;

4. Surety bond; or

5. Letter of credit.

(e) The owner or operator of any major facility which demonstrates financial responsibility pursuant to the requirements of the Federal Oil Pollution Act of 1990, P.L. 101-380, shall be deemed to have demonstrated financial responsibility in accordance with this chapter and the Act.

(f) An owner or operator may use self-insurance in combination with a guarantee only if, for the purposes of meeting the requirements of the financial test under this rule, the financial statements of the owner or operator are not consolidated with the financial statements of the guarantor.

(g) To pass the financial test of self-insurance, the owner or operator or guarantor must meet the criteria at (g)1, 2, 3, or 4 below based on the year-end financial statements of the latest completed financial reporting year. The owner or operator must maintain onsite a letter signed by the chief financial officer worded as specified at N.J.A.C. 7:1E Appendix B, incorporated herein by reference. This letter shall be updated within 120 days after the close of each financial reporting year.

1. The owner or operator or guarantor must have a tangible net worth of at least $ 10 million, and the owner or operator or guarantor must:

i. Have a tangible net worth of at least 10 times the required aggregate amount in (b) above plus any other liability coverage for which the owner or operator is using a financial test to demonstrate financial responsibility to the State or EPA;

ii. Either file financial statements annually with the U.S. Securities and Exchange Commission, the Energy Information Administration, the Rural Utilities Services, or the Board of Public Utilities; or report annually the firm's tangible net worth to Dun and Bradstreet, and Dun and Bradstreet must have assigned the firm a financial strength rating of 4A or 5A; and

iii. Have year-end financial statements which, if independently audited, do not include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification;

2. The owner or operator or guarantor must have a bond rating of AAA, AA, A or BBB as issued by Standard and Poor's, or Aaa, Aa, A or Baa as issued by Moody's, or net working capital of at least six times the required aggregate amount in (b) above plus any other liability coverage being provided by a financial test, and the owner or operator, or the guarantor, must have:

i. A tangible net worth of at least six times the applicable aggregate amount in (b) above;

ii. U.S. assets that are at least 90 percent of total assets or at least six times the required aggregate amount in (b) above plus any other liability coverage being provided by a financial test; and

iii. Fiscal year-end financial statements filed with U.S. Securities and Exchange Commission, Energy Information Administration, the Rural Utilities Services, or the Board of Public Utilities, or a special report by an independent certified public accountant stating that the data specified in the letter from the chief financial officer have been compared to the data in the latest financial statements and that no matters have come to his or her attention which cause him or her to believe that the data should be adjusted;

3. If the owner or operator is a local government and wishes to use a bond rating as the basis of the financial test, said government must have a bond rating of AAA, AA, A, or BBB from Standard and Poor's, or Aaa, Aa, A, or Baa from Moody's on outstanding issues. Where a local government has multiple outstanding issues, or where a local government's bonds are rated by both Standard and Poor's and Moody's, the lowest rating must be used to determine eligibility, and a copy of the bond rating published within the last 12 months shall be maintained. The owner or operator must maintain onsite a letter signed by the chief financial officer worded as specified at N.J.A.C. 7:1E Appendix B, incorporated herein by reference. The local government shall also:

i. If a general purpose local government, have a currently outstanding issue or issues of general obligation bonds of at least the per occurrence amount required pursuant to (b) above, excluding refunded obligations. Bonds that are backed by credit enhancement other than municipal bond insurance shall not be considered in determining the amount of applicable bonds outstanding; and

ii. If other than a general purpose local government, have a currently outstanding issue or issues of revenue bonds of at least the per occurrence amount required pursuant to (b) above, excluding refunded issues. Bonds that are backed by credit enhancement other than municipal bond insurance shall not be considered in determining the amount of applicable bonds outstanding; or

4. If the owner or operator is a local government, said government must have the ability and authority to assess and levy taxes or to freely establish fees and charges. The local government's year-end financial statements, if independently audited, shall not include an adverse auditor's opinion or a disclaimer of opinion. The local government shall not have outstanding issues of general obligation or revenue bonds that are rated as less than investment grade. The owner or operator must maintain onsite a letter signed by the chief financial officer worded as specified in Appendix B, incorporated herein by reference. The following information shall be available, as shown in the year-end financial statements for the latest completed fiscal year:

i. Total revenues, consisting of the sum of general fund operating and non-operating revenues including net local taxes, licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales, restricted and unrestricted intergovernmental revenues, and total revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this test, the calculation of total revenues shall exclude all transfers between funds under direct control of the local government using the financial test (interfund transfers), liquidation of investments, and issuance of debt;

ii. Total expenditures, consisting of the sum of fund operating and non-operating expenditures, including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this test, the calculation of total expenditures shall exclude all transfers between funds under direct control of the local government using the financial test (interfund transfers);

iii. Local revenues, consisting of total revenues as outlined in i above minus the sum of all transfers from other governmental entities, including all monies received from Federal, State or local government sources;

iv. Debt service, consisting of the sum of all interest and principal payments on all long-term credit obligations and all interest-bearing short-term credit obligations, including interest and principal payments on general obligation bonds, revenue bonds, notes, mortgages, judgments, and interest bearing warrants, but excluding payments on non-interest-bearing short-term obligations, interfund obligations, amounts owed in a trust or agency capacity, and advances and contingent loans from other governments;

v. Total funds, consisting of the sum of cash and investment securities from all funds, including general, enterprise, debt service, capital projects, and special revenue funds, but excluding employee retirement funds, at the end of the local government's financial reporting year. It includes Federal securities, Federal agency securities, State and local government securities, and other securities such as bonds, notes and mortgages. For purposes of this test, the calculation of total funds shall exclude agency funds, private trust funds, accounts receivable, value of real property, and other non-security assets; and

vi. Population, consisting of the number of people in the area served by the local government.

(h) If an owner or operator or guarantor using the financial test to provide financial responsibility finds that he or she no longer meets the requirements of the financial test based on the year-end financial statements, the owner or operator must obtain alternative coverage within 150 days after the end of the year for which financial statements have been prepared.

(i) The Department may require reports of financial condition at any time from the owner or operator, or guarantor. If the Department finds, on the basis of such reports or other information, that the owner or operator, or guarantor, no longer meets the financial test requirements of (g) above, the owner or operator must obtain alternate coverage within 30 days after notification of such a finding.

(j) If the owner or operator fails to obtain alternate coverage within 150 days after finding that he or she no longer meets the requirements of the financial test based on the year-end financial statements, or within 30 days after notification by the Department that he or she no longer meets the requirements of the financial test, the owner or operator must notify the Department of such failure within 10 days thereafter.

(k) To demonstrate financial responsibility through a guarantee:

1. Within 120 days after the close of each financial reporting year, the guarantor must demonstrate that it meets the financial test criteria set forth at (g) above by completing the letter from the chief financial officer as specified at N.J.A.C. 7:1E Appendix B and must deliver the letter to the owner or operator and the Department. If the guarantor fails to meet the requirements at (g) above, within 120 days after the end of that financial reporting year, the guarantor shall send by certified mail, before cancellation or nonrenewal of the guarantee, notice to the owner or operator and the Department. If the Department notifies the guarantor that he or she no longer meets the requirements at (g) above, the guarantor must notify the owner or operator within 10 days of receiving such notification from the Department. In both cases, the guarantee will terminate no less than 120 days after the date the owner or operator receives the notification or 120 days after the date the Department receives the notification, whichever is later, as evidenced by the return receipt. The owner or operator must obtain alternate coverage within 30 days; and

2. The guarantee must be worded as specified in Appendix B, and a copy of the guarantee maintained at the facility at all times.

(l) To demonstrate financial responsibility through liability insurance:

1. Such insurance must be obtained from a qualified insurer or risk retention group. It may be in the form of a separate insurance policy or an endorsement to an existing insurance policy;

An existing insurance policy must be amended by an endorsement worded as specified in Appendix B and a separate insurance policy must be evidenced by a certificate of insurance worded as specified in Appendix B. A copy of this endorsement or certificate must be maintained at the facility at all times;

3. Cancellation or any other termination of the liability insurance by the insurer or group, except for nonpayment of premium or material misrepresentation by the insured, will be effective only upon written notice and only after the expiration of 60 days after the date on which the insured receives the written notice or 60 days after the date on which the Department receives the written notice, whichever is later. Cancellation for nonpayment of premium or material misrepresentation by the insured will be effective only upon written notice and only after the expiration of a minimum of 10 days after the date on which the insured receives the written notice or 10 days after the date on which the Department receives the written notice, whichever is later; and

4. Within 60 days after receipt of a notice of cancellation or other termination, the owner or operator shall provide alternative financial assurance as specified in this section.

(m) To demonstrate financial responsibility through a surety bond:

1. The surety company issuing the bond must be among those listed as acceptable sureties on Federal bonds in the latest Circular 570 of the U.S. Department of the Treasury;

2. The surety bond must be worded as specified in Appendix B, and a copy of the surety bond maintained at the facility at all times;

3. Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the per-occurrence and annual aggregate sums;

4. The owner or operator who uses a surety bond to meet the requirements of (a) above must establish a standby trust fund when the surety bond is acquired. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or New Jersey agency. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the Department;

5. The surety(ies) may cancel the bond by sending written notice of cancellation by certified mail to the principal and the Department, provided, however, that the cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the principal or the date of receipt of the notice of cancellation by the Department, whichever is later, as evidenced by the return receipt; and

6. Within 60 days after receipt of a notice of cancellation or other termination, the owner or operator shall provide alternative financial assurance as specified in this section.

(n) To demonstrate financial responsibility through a letter of credit:

1. The issuing agency must be an entity that has the authority to issue letters of credit in the State and whose letter-of-credit operations are regulated and examined by a State agency;

2. The letter of credit must be worded as specified in Appendix B, and a copy of the letter of credit maintained at the facility at all times;

3. The owner or operator who uses a letter of credit to meet the requirements of (a) above must establish a standby trust fund when the letter of credit is acquired. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or New Jersey agency. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Department;

4. The letter of credit must be irrevocable with a term specified by the issuing institution, and must provide that credit be automatically renewed for the same term as the original term, unless, at least 120 days before the current expiration date, the issuing institution notifies the owner or operator and the Department by certified mail of its decision not to renew the letter of credit. Under the terms of the letter of credit, the 120 days will begin on the date when the owner or operator receives the notice or on the date when the Department receives the notice, whichever is later, as evidenced by the return receipt; and

5. Within 60 days after receipt of a notice of cancellation or other termination, the owner or operator shall provide alternative financial assurance as specified in this section.

(o) Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code:

1. Naming an owner or operator as debtor, the owner or operator shall notify the Department by certified mail of such commencement; or

2. Naming the provider of financial assurance as debtor, the provider shall notify the owner or operator by certified mail of such commencement, and the owner or operator shall then notify the Department.

(p) An owner or operator will be deemed to be without the required demonstration of financial responsibility in the event of commencement of bankruptcy or other incapacity of his or her provider of financial assurance. Within 30 days after receiving notice of such an event, the owner or operator shall submit to the Department an alternate demonstration of financial responsibility.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Deleted provisions relating to operators unable to demonstrate financial responsibility and to authority to establish alternate minimum amounts of financial responsibility.
• Recodified from N.J.A.C. 7:1E-4.5 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.4, "Discharge cleanup and removal plan", recodified to N.J.A.C. 7:1E-4.3.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (a), (g) and (h).

N.J. Admin. Code § 7:1E-4.5 Preparation and submission of DPCC and DCR plans

(a) The owner or operator of a major facility shall prepare a DPCC plan and a DCR plan in accordance with N.J.A.C. 7:1E-4.2 and 4.3. The DPCC and DCR plans shall be prepared and submitted as a single document to the Department at the address at (g) below.

(b) (Reserved)

(c) If a facility becomes a major facility because of the addition of a substance to the list of hazardous substances in Appendix A, the owner or operator shall submit a DPCC and DCR plan, certified pursuant to N.J.A.C. 7:1E-4.11, to the Department at the address in (g) below, no more than 180 days from the effective date of the addition to Appendix A.

(d) The owner or operator of a new major facility or of an existing facility that plans to increase its storage capacity to such an extent that it meets the definition of a major facility shall submit a DPCC plan and a DCR plan, certified pursuant to N.J.A.C. 7:1E-4.11, to the Department at the address in (g) below at least 180 days prior to the anticipated operational date of the facility as a major facility. The owner or operator shall receive approval and implement the approved plans prior to operating the facility as a major facility.

(e) Within 60 calendar days after receipt of a DPCC and a DCR plan, the Department shall notify the owner or operator, in writing, as to whether all information required pursuant to (a) above to begin technical review of the plans has been submitted. A list of additional information required will be included if the plans are deemed incomplete.

(f) Unless time is extended by the Department for good cause shown, such additional information as outlined in this subchapter as the Department may require shall be submitted within 30 days after receipt of the Department's request. If additional information requested by the Department is not submitted within the 30-day period, the Department may deny approval of the plan without prejudice to resubmission.

(g) One copy of the DPCC and DCR plans, which must include an original certification pursuant to N.J.A.C. 7:1E-4.11, shall be submitted to the Department for approval. Within 30 days after receipt of approval pursuant to N.J.A.C. 7:1E-4.6, a second copy of the approved DPCC and DCR plans shall be submitted electronically or in hard copy, as the Department directs. Hard copies, if required, shall be sent to:

Bureau of Release Prevention

New Jersey Department of Environmental Protection

PO Box 420

Mail Code 22-03D

Trenton, New Jersey 08625-0420

Attention: Plan Submittal

History

• Petition for Rulemaking: Seeking to extend deadline for submitting maps.
• See: 24 N.J.R. 1122(d).
• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Recodified from N.J.A.C. 7:1E-4.6 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.5, "Financial responsibility", recodified to N.J.A.C. 7:1E-4.4.
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (d); deleted former (e); recodified former (f) through (h) as (e) through (g); in (f), inserted "for good cause shown"; and in (g), substituted "and" for "or" two times, and substituted "Release" for "Discharge" in the address.
• Administrative correction.
• See: 39 N.J.R. 1710(b).
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-4.6 Approval and conditional approval of DPCC and DCR plans

(a) The Department shall act to approve or deny approval of a complete submission of a DPCC and DCR plan, pursuant to N.J.A.C. 7:1E-4.5, within 180 days after receipt.

(b) The Department may conditionally approve a plan if the maps required pursuant to N.J.A.C. 7:1E-4.2(b)7, 8, or 9 are incomplete or are not in the format prescribed by N.J.A.C. 7:1E-4.10. The Department shall grant such conditional approval if the Department determines that:

1. The plan otherwise satisfies all of the requirements of this subchapter; and

2. The owner or operator is making a good faith effort to provide complete, acceptable maps.

(c) The conditional approval under (c) above shall set forth a date on which the conditional approval will expire unless the owner or operator has provided maps which satisfy the requirements of N.J.A.C. 7:1E-4.10.

(d) The owner or operator shall demonstrate financial responsibility pursuant to N.J.A.C. 7:E-4.4 by the time the Department acts to deny or approve a DPCC or DCR plan pursuant to (a) above. If the owner or operator demonstrates to the satisfaction of the Department that none of the methods of financial responsibility set forth in N.J.A.C. 7:1E-4.4 is practicable to him or her, and that a good faith effort has been made to secure financial responsibility in the full aggregate amount, the Department shall:

1. Conditionally approve the plan; or

2. Establish an alternate minimum amount of financial responsibility pursuant to N.J.A.C. 7:1E-4.4(b).

(e) A conditional approval under (e) above shall set forth a date on which the conditional approval will expire unless the owner or operator has demonstrated financial responsibility in compliance with the requirements of N.J.A.C. 7:1E-4.4.

(f) Implementation of the DPCC and DCR plans shall begin immediately upon receipt of the Department's approval.

(g) The major facility shall keep a copy of the approved or conditionally approved plan onsite at all times.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Recodified from N.J.A.C. 7:1E-4.7 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.6, "Preparation and submission of plans", recodified to N.J.A.C. 7:1E-4.5.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (a); deleted former (b); recodified former (c) through (g) as (b) through (f); rewrote (b); deleted former (h); and recodified former (i) as (g).
• Administrative correction.
• See: 39 N.J.R. 1710(a).

N.J. Admin. Code § 7:1E-4.7 Denial or revocation of approval of plans

(a) The Department shall state in writing its reasons for denying or revoking approval of any DPCC and DCR plans.

(b) The Department may revoke its approval of a DPCC and DCR plan if the owner or operator fails to comply with an approved schedule for bringing the facility into compliance with the requirements of these rules, or submits to the Department false or willfully misleading information.

(c) If the Department denies or revokes approval of a plan, the owner or operator shall have 30 days within which to submit an acceptable plan.

(d) The owner or operator of a major facility who is aggrieved by any decision of the Department to deny or revoke approval of a DPCC and DCR plan has the right to a hearing before the Department, pursuant to the procedure outlined in N.J.A.C. 7:1E-6.

History

• Recodified from N.J.A.C. 7:1E-4.8 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.7, "Approval and conditional approval of plans", recodified to N.J.A.C. 7:1E-4.6.
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Section was "Denial or revocation of approval of DPCC or DCR plans or amendments". Substituted "DPCC and DCR" for "DPCC or DCR" throughout; in (a), deleted "or amendments thereto" following "plans"; in (b), substituted "facility" for "facility's plan"; and in (d), deleted "or amendment thereto" following "plan".

N.J. Admin. Code § 7:1E-4.8 Amendment of DPCC and DCR plans

(a) Except in emergency situations as determined by the Department, written notice of proposed new construction or installation, substantial modification or replacement of any aboveground storage tank, other aboveground enclosed storage space, any appurtenant structures, or leak detection or other monitoring, prevention, or safety systems or devices shall be provided to the Department at the address at N.J.A.C. 7:1E-4.5(g) at least 60 days prior to the commencement of construction, installation, or modification. The notice shall contain information on what new construction, installation, substantial modification, or replacement is being proposed along with a preliminary schedule for the proposed work. This provision does not apply to construction, installation, or modification contained in a schedule for upgrading in an approved DPCC plan. For purposes of this section, emergency situation is one that constitutes an immediate threat to human health and safety or a threat to the environment such as a fire, explosion, or any unplanned sudden or non-sudden leak or discharge of hazardous substances.

(b) Within 30 days after any modification that necessitates a change in a plan, except those delineated at (e) below, the owner or operator of a major facility having an approved DPCC and DCR plan shall amend the DPCC and DCR plans to reflect such changes, and shall certify the amendments pursuant to N.J.A.C. 7:1E-4.11, prior to submission to the Department for approval. The amendment shall consist of only those pages of the DPCC and DCR plans requiring changes.

(c) The Department shall act to approve or deny approval of an amendment within 60 days after receipt of an administratively complete submission.

(d) Within 30 days after receipt of approval, a second copy of the approved amendment shall be submitted electronically or in hard copy, as the Department directs.

(e) Changes to the following information shall be reported electronically or in hard copy, as the Department directs. Hard copies, if required, shall be submitted to the address at N.J.A.C. 7:1E-4.5(g) within 30 days, but shall not be considered plan amendments subject to the certification and approval requirements of this section:

1. Name and mailing address of the facility, if the change is not the result of a change of ownership;

2. Facility and personnel telephone numbers and email addresses;

3. Name and business address of the owner's or operator's registered agent;

4. Employee names that are included in the DPCC or DCR plan; and

5. New or revised financial responsibility documents.

History

• Recodified from N.J.A.C. 7:1E-4.9 and amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.8, "Denial or revocation of approval of DPCC or DCR plans or amendments", recodified to N.J.A.C. 7:1E-4.7.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (c), inserted "administratively complete" preceding "proposed".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Section was "Amendment of plans by owners or operators". Rewrote (a) through (d).
• Administrative correction.
• See: 39 N.J.R. 1710(a).

N.J. Admin. Code § 7:1E-4.9 DPCC and DCR plan renewals

(a) At least once every five years following approval or conditional approval of the DPCC and DCR plans, the owner or operator shall renew the DPCC and DCR plans. One copy of the renewal shall be submitted electronically or in hard copy, as the Department directs. Hard copies, if required, shall be submitted to the address at N.J.A.C. 7:1E-4.5(g) at least 180 days prior to the expiration date of the DPCC and DCR plans.

(b) The plan renewal shall consist of revised plans or a certification that the existing plans on file with the Department are current, including all exemptions pursuant to N.J.A.C. 7:1E-4.10(g) and alternative measures pursuant to N.J.A.C. 7:1E-1.11(e). A revised plan may be required at the time of renewal so as to incorporate into the plan all amendments adopted since the approval, conditional approval, or last renewal.

(c) Within 30 days after receipt of approval pursuant to N.J.A.C. 7:1E-4.6, a second copy of the approved renewal shall be submitted electronically or in hard copy, as the Department directs.

(d) Any change in an approved DPCC plan or DCR plan necessitated by amendments to this chapter shall be incorporated into the plan when the plan is renewed.

(e) All renewals shall be certified pursuant to N.J.A.C. 7:1E-4.11.

(f) Any DPCC or DCR plan that is not submitted for renewal in accordance with (a) above within five years of the date of approval, conditional approval, or last renewal, shall be considered expired.

History

• New Rule, R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Former N.J.A.C. 7:1E-4.9, "Amendment of plans by owners or operators", recodified to N.J.A.C. 7:1E-4.8.
• Administrative change.
• See: 32 N.J.R. 1796(a).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Rewrote (d).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.
• Administrative correction.
• See: 39 N.J.R. 1710(a).

N.J. Admin. Code § 7:1E-4.10 Mapping criteria

(a) General site plans, required pursuant to N.J.A.C. 7:1E-4.2(b)7, shall:

1. Accurately reflect the current facility, including the property boundary, delineating and identifying, by labeling or other means, storage tanks, small container storage areas, process buildings, loading or unloading areas, marine transfer areas, any other structures, and all facility fencing and gates;

2. Be drawn to a scale in the range of one inch equals 30 to one inch equals 200 feet, such that it is sufficient to delineate all items to be mapped and is appropriate for the size of the facility. If labels or other items on the general site plan are illegible, the scale should be changed or inserts should be used; and

3. Be certified by a licensed land surveyor in accordance with N.J.S.A. 45:8-27, et seq., and N.J.A.C. 13:40.

(b) Drainage and land use maps, required pursuant to N.J.A.C. 7:1E-4.2(b)8, shall include the land area within 1,000 feet of the facility's boundary and shall:

1. Employ current basemaps at a scale equal to or larger than one inch equals 600 feet, and appropriate for the size of the facility;

2. Show the facility boundary;

3. Delineate and label the following categories of land use:

i. Residential;

ii. Educational institutions;

iii. Health institutions;

iv. Commercial and services;

v. Industrial;

vi. Transportation, communication and utilities;

vii. Industrial and commercial complexes;

viii. Other urban lands not specified in (b)3i through vii above;

ix. Recreational land and parks;

x. Streams and canals;

xi. Lakes and reservoirs;

xii. Bays, estuaries and other tidal waters;

xiii. Coastal wetlands;

xiv. Interior wetlands;

xv. Agricultural land;

xvi. Beaches;

xvii. Extractive mining;

xviii. Other barren or altered lands;

xix. Deciduous forest;

xx. Coniferous forest;

xxi. Mixed forest; and

xxii. Brushland and shrubland; and

4. Locate and label all arterial and collector sewers, storm sewers, catchment or containment systems or basins, diversion systems, watercourses into which surface water run-off from the facility drains, and, on or after June 16, 2025, the direction of surface water run-off shall be labeled on DLU maps submitted as part of any newly filed DPCC and DCR plans or amended DPCC and DCR plans.

(c) General site plans and drainage and land use maps, in addition to (a) and (b) above, and transmission pipeline maps required pursuant to N.J.A.C. 7:1E-3.2(a)8 shall meet:

1. The standards contained in N.J.A.C. 7:1D, Appendix A; or

All of the following:

i. Be prepared in a digital environment that is compatible with the Department's Geographic Information System. Compatible digital formats include AutoCAD and Arc GIS;

ii. Be projected in New Jersey State Plane feet (North American Datum 1983); and

iii. Contain a legend block stating the name and affiliation of the preparer of the map, the name and location of the facility, the scale or scales employed, the sources of the data used, and the date of preparation of the map.

(d) Topographical maps showing environmentally sensitive areas, required pursuant to N.J.A.C. 7:1E-4.2(b)9, shall:

1. Employ current basemaps at a scale equal to or larger than one inch equals 1,000 feet;

2. Clearly show the location of the facility;

3. Not be so crowded as to obscure the clarity of the mapped information;

4. Accurately transfer mapped data from other sources to the basemaps;

5. Contain a legend block stating the name and affiliation of the preparer of the map, the name of the facility, the scale or scales employed, the sources of the data used, and the date of preparation;

6. Cover that area in which the major facility is located which is downgradient or topographically lower than the highest land point within the major facility and which could be affected by a discharge as delineated in (d)7 below;

7. Extend to the maximum area of potential impact, taking into account the sizes of the tanks, containers, or vessel compartments utilized by the facility, the loss of secondary containment, consideration of containment measures in addition to secondary containment, the dispersiveness of the hazardous substance, temperature extremes, average rainfall and stream flows, tidal cycles, prevailing winds, and potential threat to the environment. This area shall be the lesser of the following:

i. The distance and path an uncontrolled discharge would travel in 48 hours, including all floodprone areas around any surface water or wetlands features;

ii. The distance downstream from the facility at which the concentration of the hazardous substance would fall below EPA's Quality Criteria for Water issued by EPA's Office of Water Regulations and Standards, including all floodprone areas around any surface water or wetlands features; or

iii. Fifteen miles from the facility boundary, downgradient along the path a discharge would follow, including all floodprone areas around any surface water or wetland features; and

8. Delineate and label the environmentally sensitive areas identified in N.J.A.C. 7:1E-1.8;

(e) All maps required by N.J.A.C. 7:1E-4.2(b)7 and 8 shall be submitted in digital and paper copy form. The digital and one paper copy shall accompany the initial plan submission for approval.

(f) All maps required by N.J.A.C. 7:1E-4.2(b)9 shall be submitted in paper form. One paper copy shall accompany the initial plan submission for approval.

(g) An owner or operator may apply for an exemption, valid until the plan must be renewed, from compliance with the mapping criteria set forth above.

1. The application shall be in writing and shall contain the following:

i. A copy of a written estimate of the cost of preparing the required maps in accordance with the criteria set forth in this section; and

ii. An affidavit, signed and sworn to by the person required to provide certifications pursuant to N.J.A.C. 7:1E-4.11(c), stating that the owner or operator is a small business and that incurring the cost of obtaining maps in compliance with this section would substantially impair the owner or operator's ability to continue as a going concern.

2. The owner or operator shall submit such certified financial statements as the Department requests.

3. The Department shall grant the exemption if it determines that the cost of obtaining maps in compliance with this section would be equal to or greater than 25 percent of the owner or operator's gross proceeds or retained earnings, as demonstrated by the financial statements submitted pursuant to (g)2 above.

4. The grant of the exemption shall set forth other mapping criteria for general site plans and may set forth other mapping criteria for drainage and land use maps, which the Department determines will satisfactorily serve the purposes of this subchapter. One such set of criteria for general site plans includes the scanning of the existing general site plan to produce a digital image for submission to the Department along with the facility's coordinate centroid in New Jersey State Plane feet (North American Datum 1983).

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Administrative change.
• See: 32 N.J.R. 1796(a).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Rewrote section.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• In (c)1 and 2i, substituted "7:1D" for "7:1"; in (d)9iii(4), substituted "(f)" for "(e)".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote the section.

N.J. Admin. Code § 7:1E-4.11 Certifications

(a) Any person who submits summary test results, the DPCC and DCR plans, plan amendment, plan renewal, confirmation report, or transmission pipeline registration to the Department shall include, as an integral part of the summary test results, plan, plan amendment, plan renewal, confirmation report, or transmission pipeline registration the following certification, signed by the highest ranking individual with overall responsibility for the information contained in the certified documents:

"I certify under penalty of law that the information provided in this document is, to the best of my knowledge, true, accurate and complete. I am aware that there are significant civil and criminal penalties, including the possibility of fines or imprisonment or both, for submitting false, inaccurate or incomplete information."

The certification must contain a signature block consisting of a signature, the signatory's typed name, title, company name, and the date of the signature.

(b) In addition to the certification at (a) above, any person who submits DPCC and DCR plans, plan amendment, plan renewal, or transmission pipeline registration to the Department shall include, as an integral part of the plan, plan amendment, plan renewal, or transmission pipeline registration, the following certification:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this plan and all attached documents and, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate and complete. I am aware that there are significant civil and criminal penalties, including the possibility of fine or imprisonment or both, for submitting false, inaccurate or incomplete information."

The certification must contain a signature block consisting of a signature, the signatory's typed name, title, company name, and the date of the signature.

(c) The additional certification at (b) above shall be signed by the ranking official at a level of authority to commit the necessary resources to fully implement the DPCC and DCR plans, plan amendment, plan renewal, or transmission pipeline registration.

(d) Notwithstanding the provisions of (b) above, the certification contained in (a) above shall be the only certification required if the individual required in (a) above to sign the certification is the same individual required in (c) above to sign the additional certification.

(e) Any person who submits a DPCC plan or plan renewal, or a plan amendment for a change requiring the application of sound engineering practice, shall include a certification from a professional engineer licensed pursuant to N.J.S.A. 45:8-27 et seq. that attests that he or she has reviewed the plan and that it complies with all applicable Departmental requirements and has been prepared in accordance with sound engineering practices.

(f) Any person submitting a DCR plan containing off-site response measures, or submitting an amendment or renewal to the off-site response measures, shall include, as an integral part of the plan, plan amendment, or plan renewal, a certification, signed by a marine biologist or aquatic biologist or ecologist or freshwater equivalent and an ornithologist stating that the off-site response measures identifies those environmentally sensitive areas that could be affected by a discharge from this facility and the seasonal sensitivity of those areas, provides for protection from, and mitigation of, any potentially adverse impact on the identified areas, and for an environmental assessment in the event of a discharge.

(g) All certifications for hard copy submittals required at (a) through (f) above shall contain an original, pen-to-paper, signature. All certifications for electronic submittals shall be submitted in a manner specified by the Department, such as a digital signature or other authentication method compatible with the Department's software.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (a) certification wording, inserted "the possibility of" preceding "fines" in second sentence.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Added a new (e); recodified former (e) as (f), substituted "a deployment" for "an environmentally sensitive areas protection" and "deployment" for "environmentally sensitive areas protection".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a) and (b), added the final paragraph; and rewrote (c) and (e).

Subchapter 5 DISCHARGE NOTIFICATION, RESPONSE AND REPORTING

N.J. Admin. Code § 7:1E-5.1 Scope

This subchapter prescribes the rules of the Department for notification and reporting of discharges of hazardous substances, the reporting of malfunctions of discharge detection systems, and response to discharges of hazardous substances. The following rules shall govern the procedures for notification of the Department, response to a discharge of a hazardous substance, and follow-up reporting.

N.J. Admin. Code § 7:1E-5.2 Notification of historical discharges

(a) All persons responsible for a discharge who know or suspect that a discharge has occurred prior to January 23, 1980, or who know or suspect that a discharge has occurred between January 23, 1980 and September 12, 1991, that was not required to be reported at that time, and who have not previously reported that discharge shall conduct a diligent inquiry and shall promptly upon completion of the diligent inquiry and discovery of a discharge notify the Department by calling the toll-free hotline, 1-877-WARN-DEP (1-877-977-6337).

(b) All persons responsible for a discharge pursuant to (a) above who previously reported a discharge which occurred prior to January 23, 1980, or who know or suspect that a discharge has occurred between January 23, 1980 and September 12, 1991, that was not required to be reported at that time, shall promptly correct or supplement the prior notice to the Department if any of the information in the prior notice is determined to be false, misleading or inaccurate, or if additional relevant information is discovered which has not been previously reported to the Department.

(c) All persons responsible for a discharge who are required to make a notification pursuant to (a) or (b) above and who are subject to an investigation or cleanup action under any State or Federal law, may notify the Department of the discovery of a historical discharge as part of the periodic progress reports required during the investigation or cleanup if the discovery of the historical discharge is coincident with such investigation or cleanup.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).

N.J. Admin. Code § 7:1E-5.3 Discharge notification

(a) Except as delineated in (e) below, immediately after a discharge commences, any person or persons responsible for a discharge who knows or reasonably should know of the discharge, shall immediately notify the Department at (877) WARN DEP (927-6337). In the event that this number is inoperable, any person or persons responsible for a discharge shall immediately notify the State Police at (609) 882-2000.

(b) Notification received by the Department pursuant to (a) above within 15 minutes of the time that the person responsible for a discharge knew, or reasonably should have known, of the occurrence of a discharge shall be considered immediate. It shall be presumed that notification received by the Department more than 15 minutes after the person responsible for a discharge knew, or reasonably should have known, of the discharge is not immediate. The person responsible for the discharge may rebut this presumption by satisfying the requirement of N.J.A.C. 7:1E-5.6.

(c) Any notification performed by any person responsible for a discharge pursuant to (a) and (b) above shall include, but not be limited to, the following information:

1. The name, title, affiliation, address and telephone number of the person reporting the discharge;

2. The location of the discharge, with as much specificity as the Department requests, and in any event with sufficient specificity to enable the Department to direct its agents and employees and any other person to the discharge site, including:

i. For discharges from sites located on land, the name of the site, the street address, the municipality, and the county;

ii. For discharges on, under or into water, the name of the water body, location of the discharge with reference to a fixed point or points, and a description of the area which the discharge may reach.

3. The common name of the hazardous substance(s) discharged;

4. An estimate of the quantity of each hazardous substance discharged, including best estimates if the quantities are unknown;

5. The date and time at which the discharge began, and whether the discharge is continuing, intermittent or terminated;

6. The actions such person proposes to take to contain, clean up and remove the hazardous substance(s) discharged;

7. The name and address of any person responsible for the discharge.

(d) A copy of the requirements at (a) and (c) above, printed in a conspicuous format, shall be displayed by the owner or operator of any vessel that is ordinarily docked in this State in a prominent place on the bridge or pilot house of any such vessel.

(e) A discharge from a transformer of transformer fluid that does not contain polychlorinated biphenyls in concentrations of 50 parts per million or greater, and that is not required to be reported pursuant to any other State or Federal statute, rule, or regulation, is not required to be reported to the Department pursuant to (a) above, provided the discharge:

1. Occurs during a state of emergency declared by the Federal, State, or local government, provided such discharges are reported to the Department within 24 hours after the termination of the state of emergency; or

Meets all of the following conditions:

i. The discharge is less than 25 gallons;

ii. The discharge has not entered any waters of the State, or any storm drain leading to any waters of the State;

iii. Within 24 hours after any person responsible for the discharge knows or reasonably should have known of the discharge, the discharge is cleaned up and removed in accordance with the applicable State or Federal regulations for cleanup and remediation, including the storage and disposal of cleanup related materials; and

iv. The person responsible for the discharge documents his or her actions in accordance with N.J.A.C. 7:26E, and maintains, and makes available for Department review at either the person's or the Department's offices at the discretion of the Department, such records for three years from the date of the discharge.

(f) The following conditions shall be met in order for any release of a hazardous substance consequent to a motor vehicle accident to be considered a leak not requiring notification pursuant to (a) above:

1. The hazardous substance has not entered any waters of the State, or any storm drain leading to any waters of the State;

2. The hazardous substance is contained on a paved roadway; and

3. Prior to its escape to lands or waters of the State, the hazardous substance is cleaned up and removed in accordance with the applicable State or federal regulations for cleanup and remediation, including storage and disposal of cleanup related materials.

History

• Administrative correction to (a).
• See: 24 N.J.R. 581(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (a), amended Department phone number and in (e)3, substituted "50" for "500" preceding "parts per million".
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (c)5 and (d); in the introductory paragraph of (e), substituted "A" for "For the purposes of this section, a"; in (e)1, inserted "Facility"; and rewrote (e)1iii.
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-5.4 Notification of aircraft discharges

(a) In the case of a discharge of a hazardous substance used as fuel from an aircraft into the airspace over the lands or waters of New Jersey, any person responsible for a discharge shall notify the Department at (877) WARN DEP (927-6337). In the event that this number is inoperable, any person or persons responsible for a discharge shall immediately notify the State Police at (609) 882-2000.

(b) Any person responsible for a discharge who notifies the Department pursuant to (a) above shall report:

1. The person causing the discharge;

2. The amount of hazardous substance discharged;

3. The time the discharge occurred;

The location in the aircraft flight path of the discharge;

5. The wind speed and direction; and

6. The area likely to be affected by the discharge.

History

• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (a), amended Department phone number.

N.J. Admin. Code § 7:1E-5.5 Notification of malfunctions in discharge detection systems

(a) The owner or operator of a major facility shall immediately notify the Department at (877) WARN DEP (927-6337) of any malfunction of a discharge detection or other discharge monitoring, prevention or safety system or device. In the event that this number is inoperable, any owner or operator of a major facility shall immediately notify the State Police at (609) 882-2000.

(b) Notification received by the Department pursuant to (a) above within 15 minutes of the time that the owner or operator knew, or reasonably should have known, of the occurrence of a malfunction shall be considered immediate. It shall be presumed that notification received by the Department more than 15 minutes after the owner or operator knew, or reasonably should have known, of the malfunction is not immediate. The owner or operator may rebut this presumption by satisfying the requirements of N.J.A.C. 7:1E-5.6.

(c) Within two hours after the initial notification, the owner or operator of a major facility shall notify the Department that one of the following situations exists:

1. The malfunction has been repaired;

2. An alternate discharge detection system has been activated for the equipment utilizing the malfunctioning system; or

3. The equipment protected by the discharge detection system has been taken out of service.

History

• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (a), amended Department phone number.

N.J. Admin. Code § 7:1E-5.6 Justification of delay

(a) The Department, at its discretion, may determine that a period of longer than 15 minutes for initiating the notification of the Department of a discharge is immediate if the person responsible for the discharge can show, by clear and convincing evidence, that the notification of the Department was initiated as soon as possible or reasonable and that notification within 15 minutes was impossible or unreasonable because of:

1. Essential immediate response activities;

2. The circumstances under which the discharge occurred;

3. The circumstances under which the discharge was first discovered; or

4. Some other valid cause or reason.

(b) A person who does not initiate the notification of the Department within 15 minutes after a discharge and who desires to establish that the notification was as immediate as reasonably possible under the circumstances in which the discharge occurred, shall submit a sworn affidavit so attesting with the written confirmation report required pursuant to N.J.A.C. 7:1E-5.8. This affidavit shall set forth the circumstances of the discharge to establish that the notification of the Department was as immediate as reasonably possible under the circumstances in which the discharge occurred. The affidavit shall be signed by the person or persons required to sign any certifications pursuant to N.J.A.C. 7:1E-4.11, and shall include, but not be limited to, the following information:

The address of the facility at which the discharge occurred;

2. The date and time at which the discharge began and the date and time at which it ceased;

3. The name, job title, affiliation, business telephone number and business address of the individual who first discovered the discharge;

4. The date, the time, and the circumstances under which the discharge was first discovered;

5. The reason(s), if any, why the discharge was not immediately discovered;

6. The date and time which the discharge was first reported to the Department;

7. The name, business telephone number, and business address of the individual who first notified the Department of the discharge;

8. Any reason why initiation of notification of the Department within 15 minutes of the onset of the discharge was impossible or unreasonable; and

9. A demonstration that initiation of notification was carried out as soon as possible or reasonable.

History

• Amended by 57 N.J.R. 1253(b), effective 6/16/2025

N.J. Admin. Code § 7:1E-5.7 Discharge response

(a) Any person responsible for a discharge shall:

1. Take immediate action to stop the discharge;

2. Take all necessary and appropriate measures to contain, mitigate, clean up, and remove the discharge by:

i. Following the facility's approved DCR plan, prepared, and implemented in accordance with N.J.A.C. 7:1E-4; and

ii. Remediating the discharge pursuant to the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C; and

3. Coordinate such actions with the Department.

(b) No person shall apply chemicals to a discharge without the prior approval of the Department or the federal on-scene coordinator under the National Oil and Hazardous Substances Pollution Contingency Plan pursuant to 40 CFR 300, unless such application is necessary to prevent or mitigate a situation that poses a serious and imminent threat to human life. In any such situation of imminent threat to human life, the owner or operator shall make reasonable efforts to secure the approval of the Department or the federal on-scene coordinator before applying chemicals. Approval to apply chemicals may be obtained verbally, including by telephone. Application of chemicals pursuant to a DCR plan approved by the Department shall be deemed to have prior approval. Unauthorized use of chemicals shall be regarded as a discharge in violation of N.J.A.C. 7:1E-1.11.

(c) Upon learning that a discharge of a hazardous substance has occurred, the Department may:

1. Act to contain, mitigate, clean up and remove the discharge; or

2. Take any other action to require any person responsible for the discharge to remediate the discharge pursuant to:

i. Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C; and

ii. The Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

(d) The Department, at its discretion, may observe, supervise or participate in any aspect of containment, or cleanup and removal activities. In the exercise of its supervisory power, the Department may order any person to cease cleanup and removal activities and other discharge-related operations if it determines that the person is not capable of properly containing, cleaning up or removing a discharge, or if the Department determines that person is failing to conduct cleanup operations in a proper and expeditious manner.

History

• Amended by 50 N.J.R. 1715(b), effective 8/6/2018

N.J. Admin. Code § 7:1E-5.8 Confirmation report and recordkeeping

(a) Any owner or operator of a transmission pipeline or of a major facility who has notified the Department of a discharge from a regulated portion of the transmission pipeline or from a regulated portion of the major facility pursuant to N.J.A.C. 7:1E-5.3 shall send to the Department a written confirmation report within 30 days after said notification.

(b) (Reserved)

(c) Any person required to submit a confirmation report pursuant to (a) above shall include the following in the confirmation report:

1. The name, address and telephone number of the individual that reported the discharge pursuant to N.J.A.C. 7:1E-5.3;

2. The name, address and telephone number of the individual submitting the confirmation report if different from the individual identified in (c)1 above, and the relationship between said persons, such as employer-employee, or contractor-client;

3. The name, address and telephone number of each owner and operator of the facility at which the discharge occurred, or the vessel or vehicle from which the discharge occurred;

4. The Communications Center number, assigned by the Department when the discharge was reported pursuant to N.J.A.C. 7:1E-5.3(a);

5. The source and cause of the discharge, if known;

6. The location of the discharge, as follows:

i. For discharge from sites located on land, the name of the site, the street address, the tax lot and block, the municipality, the county, and a site map identifying the point at which the discharge occurred and the surrounding area;

ii. For discharges on, under or into water, the name of the water body, and a map identifying the source of the discharge; and

iii. For all discharges that affect areas not under the control of the owner or operator, a map of the area affected by the discharge;

7. A list of the common name and Chemical Abstract Service number of each of the hazardous substances discharged;

8. A list of the quantities of each hazardous substance discharged, including best estimates if the quantities are unknown;

9. The following chronology:

i. The date and time at which the discharge began;

ii. The date and time at which the discharge was discovered;

iii. The date and time at which the discharge ended; and

iv. The date and time at which the Department was notified pursuant to N.J.A.C. 7:1E-5.3;

10. A description of the measures taken to contain, clean up and remove the discharge, and a summary of costs incurred;

11. Corrective or preventive measures taken or proposed to minimize the possibility of recurrence;

12. The name, addresses and telephone numbers of all entities involved in containment, cleanup or removal of the discharge;

13. Information supplementing any information previously provided to the Department if additional relevant information is discovered, or if it is determined that the information previously provided was false, inaccurate or misleading;

14. Any other information concerning the discharge which the Department may request; and

15. A fully executed certification pursuant to N.J.A.C. 7:1E-4.11.

(d) Any person required to submit a confirmation report pursuant to (a) above shall promptly notify the Department, in writing, of any additional or corrected information which becomes available after the submission of a confirmation report, within 10 days after the availability of that information. Such information shall reference the date, title, and author of the confirmation report which is being supplemented.

(e) Any person required to submit a confirmation report for a discharge at a major facility or transmission pipeline shall submit the confirmation report electronically or in hard copy, as the Department directs. Hard copies, if required, shall be sent to:

Bureau of Release Prevention

New Jersey Department of Environmental Protection

PO Box 420

Mail Code 22-03D

Trenton, New Jersey 08625-0420

Attention: Discharge Confirmation Report

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Administrative change.
• See: 32 N.J.R. 1796(a).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (c)5iii, deleted N.J.A.C. reference and in (c)13, amended N.J.A.C. references.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Reserved (b).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Added new (c)4; recodified former (c)4 through (c)11 as (c)5 through (c)12; rewrote (c)6i, (c)6ii and (c)9; deleted former (c)12 and (c)13; recodified (c)14 through (c)16 as (c)13 through (c)15; in the address in (e), substituted "Release" for "Discharge"; and in the address in (f), substituted "and Waste Management" for "Program" and "Emergency Planning and" for "Discharge".
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-5.9 Reporting responsibilities of the Department

(a) Upon obtaining any information which leads it to suspect that a discharge has occurred in a municipality's jurisdiction, the Department shall immediately notify orally the contact persons for the governing body of the municipality and the local board of health as specified in (b) below, unless these entities have been notified previously.

(b) The governing body of the municipality and the local board of health shall provide the Department with the name, address and telephone number of a 24 hour contact point and an alternate 24 hour contact point. The governing body of the municipality and the local board of health may change the contact point and alternate contact point upon written notice to the Department. If a contact point and an alternate contact point are not specified, the local police department or local fire department shall be the points designated by the Department to receive notification pursuant to (a) above.

(c) Within 10 days after the initial oral notification required pursuant to (a) above, the Department shall issue a letter confirming and, if appropriate, expanding upon that initial oral notification.

(d) The Department shall take appropriate action to verify that a discharge has occurred as suspected, including the authorization of agent(s) or officer(s) of the municipality or local board of health by an appropriate Department official to investigate the site of the suspected discharge. Such investigation shall include conducting visual assessment of the site of the discharge and contacting any persons potentially responsible for the discharge.

(e) The agent(s) or officer(s) of the municipality shall report all findings to the Department.

History

• Amended by 57 N.J.R. 1253(b), effective 6/16/2025

N.J. Admin. Code § 7:1E-5.10 Discharge reporting requirements of local officials

(a) When any governing body of a municipality or local board of health obtains information which leads it to suspect that a discharge has occurred, the governing body or local board of health shall immediately notify, as specified in (b) below, the Department, unless the Department has already been notified of the discharge.

(b) The governing body or local board of health shall provide the Department with information regarding any discharge pursuant to (a) above in the format specified at N.J.A.C. 7:1E-5.3(a).

(c) The local governing body and the local board of health shall coordinate all responses to the discharge with the Department.

N.J. Admin. Code § 7:1E-5.11 Amendment of plans following a discharge

Following submission of a confirmation report pursuant to N.J.A.C. 7:1E-5.8, the Department may review a facility's DPCC and DCR plans and may require the owner or operator of the facility to amend the plans, in accordance with N.J.A.C. 7:1E-4.8, if it finds that a plan does not meet the requirements of this chapter or that amendment of the plan is necessary to prevent and contain similar discharges.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Deleted designation (a); inserted "in accordance with N.J.A.C. 7:1E-4.8,"; and deleted (b).

Subchapter 6 CIVIL ADMINISTRATIVE PENALTIES AND REQUESTS FOR ADJUDICATORY HEARINGS

N.J. Admin. Code § 7:1E-6.1 Scope

This subchapter shall govern the Department's assessment of civil administrative penalties for violation of provisions of the Act, including rules, regulations, plans, information requests, access requests, orders or directives promulgated or issued pursuant to the Act. This subchapter shall also govern the procedures for requesting an adjudicatory hearing on a notice of civil administrative penalty assessment, an administrative order, conditions of approval for any plan or amendment to a plan, or a denial or revocation of approval of a plan or amendment to a plan required under this chapter.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Substituted "violation of provisions of the Act, including rules, regulations, plans, information requests, access requests, orders or directives" for "violation of any provision of the Act, including any rule, regulation, plan, information request, access request, order or directive" and "this chapter" for "the Act" at the end.

N.J. Admin. Code § 7:1E-6.2 Applicability

(a) The Department may assess a civil administrative penalty of not more than $ 50,000 for any discharge less than 100,000 gallons, not more than $ 10,000,000 for any discharge of 100,000 gallons or more, and not more than $ 50,000 for each violation of the Act or of any rule, regulation, plan, information request, access request, order or directive promulgated or issued pursuant to the Act.

(b) Each violation of any provision of the Act, or any rule, regulation, plan, information request, access request, order or directive promulgated or issued pursuant thereto shall constitute a separate and distinct offense.

(c) Each day during which a violation continues shall constitute an additional, separate, and distinct offense.

(d) The Department may, in its discretion, treat an offense as a first offense solely for civil administrative penalty determination purposes, if the violator has not committed the same offense in the five years immediately preceding the date of the pending offense.

(e) Neither the assessment of a civil administrative penalty nor the payment of any such civil administrative penalty shall be deemed to affect the availability of any other enforcement provisions provided for by the Act, or any other statute, in connection with the violation for which the assessment is levied.

N.J. Admin. Code § 7:1E-6.3 Procedures for issuance of administrative orders and assessment, settlement, and payment of civil administrative penalties

(a) In order to assess a civil administrative penalty under the Act, for violation of the Act or any rule, regulation, plan, information request, access request, order or directive promulgated or issued pursuant to the Act, the Department shall, by means of an administrative order or notice of civil administrative penalty assessment, notify the violator by certified mail (return receipt requested) or by personal service. The Department may, in its discretion, assess a civil administrative penalty for more than one offense in a single administrative order or notice of civil administrative penalty assessment or in multiple administrative orders or notices of civil administrative penalty assessment. This Administrative Order or Notice of Civil Administrative Penalty Assessment shall:

1. Identify the section of the Act, rule, plan, request, order or directive violated;

2. Concisely state the facts which constitute the violation;

3. Order such violation to cease;

4. Specify the amount of the civil administrative penalty to be imposed; and

5. Advise the violator of the right to request an adjudicatory hearing pursuant to the procedures in N.J.A.C. 7:1E-6.4.

(b) Payment of the civil administrative penalty is due upon receipt by the violator of the Department's Final Order in a contested case or when a Notice of Civil Administrative Penalty becomes a Final Order, as follows:

1. If no hearing is requested pursuant to the procedures in N.J.A.C. 7:1E-6.4, a Notice of Civil Administrative Penalty Assessment becomes a Final Order on the 21st calendar day following receipt of the Notice of Civil Administrative Penalty Assessment by the violator;

2. If the Department denies the hearing request pursuant to N.J.A.C. 7:1E-6.4(a), a Notice of Civil Administrative Penalty becomes a Final Order and is deemed received on the 21st day following receipt of the Notice of Civil Administrative Penalty Assessment by the violator;

3. If the Department denies the hearing request pursuant to N.J.A.C. 7:1E-6.4(c), a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt by the violator of notice of such denial; or

4. If the Department grants the hearing request, a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt of a Final Order in a contested case.

(c) If a civil administrative penalty is not paid within 30 calendar days after the date of a Final Order, and the penalty is not contested pursuant to N.J.A.C. 7:1E-6.4, or any payment pursuant to a payment schedule entered into with the Department is not made, an interest charge shall accrue on the amount of the penalty from the 30th calendar day that amount was due and owing.

(d) If a civil administrative penalty is appealed pursuant to N.J.A.C. 7:1E-6.4, and the amount of the penalty is upheld, in whole or in part, a rate of interest shall be calculated on that amount as of the 30th calendar day from the date the amount was due and owing under the administrative order.

(e) The rate of interest charged on any late penalty shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.

(f) The Department may assess and recover, by civil administrative order, the costs of any investigation, cleanup or removal, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.

(g) Any person who violates a provision of the Act or a Court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject to a civil penalty not to exceed $ 50,000 per offense. Any penalty so incurred may be recovered with costs in a summary proceeding pursuant to N.J.S.A. 2A:58-1 et seq. in the Superior Court or a municipal court.

(h) Any conveyance used or intended for use in the willful discharge of a hazardous substance is subject to forfeiture to the State.

(i) The Department may, in its discretion, settle any Civil Administrative Penalty assessed pursuant to N.J.A.C. 7:1E-6.5, 6.6, 6.7 or 6.8 according to the following factors:

1. Mitigating or extenuating circumstances not previously considered in the Notice of Civil Administrative Penalty Assessment pursuant to N.J.A.C. 7:1E-6.8;

2. The timely implementation by the violator of measures leading to compliance not previously considered in the assessment of penalties pursuant to N.J.A.C. 7:1E-6.5 or 6.8;

3. The full payment by the violator of a specified part of the Civil Administrative Penalty assessed if made within a time period established by the Department in an administrative order and provided that the violator waives the right to request an adjudicatory hearing on the Civil Administrative Penalty; or

4. Any other terms or conditions acceptable to the Department not previously considered in the assessment of penalties pursuant to N.J.A.C. 7:1E-6.5, 6.6, 6.7 or 6.8.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (b)3, inserted "notice of".

N.J. Admin. Code § 7:1E-6.4 Procedures for requesting and conducting adjudicatory hearings

(a) If the Department does not receive a hearing request within 20 calendar days after receipt by the violator of an administrative order or notice of civil administrative penalty assessment, conditions of approval for any plan, or amendment to a plan, or denial or revocation of approval of any plan or amendment being challenged, the Department shall deny the hearing request.

(b) To request an adjudicatory hearing to contest an administrative order or notice of civil administrative penalty assessment issued pursuant to the Act, or conditions of approval for any plan, or amendment to a plan, or the denial or revocation of approval of any plan or amendment to a plan required pursuant to the Act, the violator shall submit the following information in writing, on forms provided by the Department, to the Department at the addresses in (e) below:

1. The name, address, and telephone number of the person requesting the hearing and his or her authorized representative;

2. A copy of the administrative order or notice of civil administrative penalty assessment, or the approval or the denial or revocation of approval of any plan or amendment and a list of all issues being appealed;

3. An admission or denial of each of the Department's findings of fact in the administrative order or notice of civil administrative penalty assessment, or denial or revocation of approval of a plan or amendment to a plan. If the violator is without knowledge or information sufficient to form a belief as to the truth of a finding, the violator shall so state and this shall have the effect of a denial. A denial shall fairly meet the substance of the findings denied. When the violator intends in good faith to deny only a part or a qualification of a finding, the violator shall specify so much of it as is true and material and deny only the remainder. The violator may not generally deny all of the findings, but shall make all denials as specific denials of designated findings. For each finding the violator denies, the violator shall allege the fact or facts as the violator believes it or them to be;

4. The violator's defenses to each of the Department's findings of fact in the administrative order or notice of civil administrative penalty assessment, or reasons for denial or revocation of approval, stated in short and plain terms;

5. Information supporting the request and specific reference to or copies of other written documents relied upon to support the request;

6. An estimate of the time required for the hearing (in days and/or hours);

7. A request, if necessary, for a barrier-free hearing location for physically disabled persons; and

8. A clear indication of any willingness to negotiate a settlement with the Department prior to the Department's processing of the hearing request to the Office of Administrative Law.

(c) If the violator fails to include all the information required by (b) above, the Department may deny the hearing request.

(d) All adjudicatory hearings shall be conducted in accordance with the Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(e) Requests for adjudicatory hearings shall be sent to:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

With a copy sent to:

Bureau of Release Prevention

New Jersey Department of Environmental Protection

401 East State Street, 7^th floor

PO Box 420, Mail Code 22-03D

Trenton, New Jersey 08625-0420

Attention: Adjudicatory Hearing Request

History

• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Rewrote (b) and (e).
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-6.5 Civil administrative penalty determination-general

(a) For violations other than those set forth at (c) below and N.J.A.C. 7:1E-6.6, 6.7, and 6.8, the Department may assess a civil administrative penalty for offenses described in this subchapter within the following ranges:

1. Up to $ 40,000 for the first offense;

2. Up to $ 50,000 for the second offense; and

3. Up to $ 50,000 for the third and each subsequent offense.

(b) The Department may, in its discretion, set the amount determined pursuant to (a) above to assess a civil administrative penalty on the basis of the following factors:

1. The compliance history of the violator;

2. The number, frequency and severity of the offense(s);

3. The measures taken by the violator to mitigate the effects of the current offense and to prevent future offenses;

4. The deterrent effect of the penalty; or

5. Other specific circumstances of the violator or offense.

(c) The Department may assess a civil administrative penalty, pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, N.J.A.C. 7:26C-9, for a person's violation of an obligation to cleanup and remove a discharge pursuant to N.J.A.C. 7:1E-5.

History

• Amended by R.2003 d.198, effective 5/19/2003.
• See: 34 N.J.R. 3703(a), 35 N.J.R. 2319(a).
• In (a), inserted "(c) below and" preceding the N.J.A.C. references; added (c).
• Amended by R.2006 d.328, effective 9/18/2006.
• See: 37 N.J.R. 2923(a), 38 N.J.R. 3821(a).
• In (c), substituted "Sites rules" for "Sites rule" and deleted ".4 and 10.5" following "N.J.A.C. 7:26C-10".
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• In (c), substituted "Administrative Requirements for the Remediation" for "Department Oversight" and updated the first N.J.A.C. reference.
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted without change.

N.J. Admin. Code § 7:1E-6.6 Civil administrative penalty for submitting inaccurate or false information

(a) The Department may assess a civil administrative penalty against each violator who submits inaccurate information or who makes a false statement, representation, or certification in any DPCC plan, DCR plan, registration, record, or other document submitted or maintained, or who falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under the Act or any rule, regulation, plan, order or directive pursuant thereto.

(b) Each time the violator submits inaccurate or false information to the Department shall be an additional, separate, and distinct offense.

(c) Each day from the day that the violator knew or had reason to know that he or she had submitted inaccurate or false information to the Department until the day of receipt by the Department of a written correction by the violator shall be an additional, separate and distinct offense.

(d) The Department shall determine the amount of the civil administrative penalty for offenses described in this section based on the conduct of the violator as follows:

1. For each intentional, deliberate, purposeful, knowing, or willful act or omission by the violator, the civil administrative penalty, for each act or omission, is up to $ 40,000 for the first offense, up to $ 50,000 for the second offense, and up to $ 50,000 for the third and each subsequent offense; and

2. For all other conduct, the civil administrative penalty, for each act or omission, is up to $ 2,000 for the first offense, up to $ 4,000 for the second offense, and up to $ 10,000 for the third and each subsequent offense.

(e) A violation under this section is non-minor and therefore not subject to a grace period.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• Added new (c); recodified former (c) as (d); and added (e).

N.J. Admin. Code § 7:1E-6.7 Civil administrative penalty for failure to allow lawful entry and inspection

(a) The Department may assess a civil administrative penalty against each violator who refuses, inhibits or prohibits immediate lawful entry and inspection of any premises, building, vessel or place, except private residences, by an authorized Department representative.

(b) Each day that a violator refuses, inhibits or prohibits immediate lawful entry and inspection of any premises, building, vessel, or place, except private residences, by an authorized Department representative, shall be an additional, separate and distinct offense.

(c) The amount of the civil administrative penalty for offenses described in this section is up to $ 20,000 for the first offense, up to $ 40,000 for the second offense, and up to $ 50,000 for the third and each subsequent offense.

(d) A violation under this section is non-minor and therefore not subject to a grace period.

History

• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (b), inserted "vessel,"; and added (d).

N.J. Admin. Code § 7:1E-6.8 Civil administrative penalties for violations of rules adopted pursuant to the Act

(a) Civil administrative penalties for offenses described in (c)2 below shall not be assessed until the time allotted under the applicable schedule for upgrading approved by the Department has expired.

(b) Civil administrative penalties for offenses described in (c)2 and 4 below shall apply to major facilities only. All other civil administrative penalties shall apply to all persons.

(c) The Department shall determine the amount of the civil administrative penalty for offenses described in this section on the basis of the provision violated and the frequency of the violation. Violations identified as minor or non-minor in accordance with N.J.S.A. 13:1D-125 et seq., are set forth in this section. The Department will provide a grace period for any violation identified as minor, in accordance with N.J.A.C. 7:1E-6.9. The number of each of the following paragraphs corresponds to the number of the corresponding subchapter in this chapter.

1. The violations of N.J.A.C. 7:1E-1, General Provisions, and the civil administrative penalties for each violation are as set forth in the following table, unless modified pursuant to (d) below. In no case shall the assessed penalty be less than zero or more than the statutory

| Citation | Minor³ | Minor Days⁴ | | --- | --- | --- | | N.J.A.C. 7:1E-1.11(a) | NM | |

| Base Penalty for each Violation | | | | --- | --- | --- | | Gallons | | Penalty | | >0-9 | | $ 1,000 | | 10-55 | | $ 2,000 | | 56-499 | | $ 4,000 | | 500-999 | | $ 6,000 | | 1,000-4,999 | | $ 10,000 | | 5,000-9,999 | | $ 15,000 | | 10,000-19,999 | | $ 20,000 | | 20,000-29,999 | | $ 30,000 | | 30,000-39,999 | | $ 40,000 | | 40,000-49,999 | | $ 50,000 | | 50,000-59,999 | | $ 50,000 | | 60,000-69,999 | | $ 50,000 | | 70,000-79,999 | | $ 50,000 | | 80,000-89,999 | | $ 50,000 | | 90,000-99,999 | | $50,000 | | 100,000-149,999 | | $ 150,000 | | 150,000-199,999 | | $ 200,000 | | 200,000-299,999 | | $ 400,000 | | 300,000-399,999 | | $ 800,000 | | 400,000-499,999 | | $ 1,600,000 | | 500,000-599,999 | | $ 2,000,000 | | 600,000-699,999 | | $ 4,000,000 | | 700,000-799,999 | | $ 6,000,000 | | 800,000-899,999 | | $ 8,000,000 | | 900,000 or greater | | $ 10,000,000 |

The base penalty shall be reduced or increased by applying the following factors¹:

| Area of Impact: | | | --- | --- | | Into waters of the State | - 30% increase from base | | Off the facility but not into waters of the State - No | change from base | | Contained on the facility and not into waters of the State | - 30% reduction from base |

Discharge History (Number of discharges not contained on the facility within the previous 12 months):

| Five or more discharges | - 100% increase from base | | --- | --- | | 1-4 discharges | - 50% increase from base |

| Zero discharges | - No change from base | | --- | --- |

¹ The penalty for each violation is calculated by summing the base penalty and the resultant percentage of the base penalty for each of the applicable factors.

2. The violations of N.J.A.C. 7:1E-2, Prevention and Control of Discharges at Major Facilities, and the civil administrative penalty amounts for each violation set forth in the following table, unless revised pursuant to (d) below:

| Category of Offense² | Citation | First Offense | Second Offense | Third or Subsequent Offense | Minor³ | Minor Days⁴ | | --- | --- | --- | --- | --- | --- | --- | | No secondary containment for an above- ground storage tank | 2.2(a)1 | $20,000 | $40,000 | $50,000 | NM | | | Failure to surface the base underlying a storage tank with impermeable material | 2.2(a)2 | $ 10,000 | $20,000 | $30,000 | NM | | | Failure to equip a pipe with remotely activated or readily accessible valves | 2.2(a)3i | $ 4,000 | $ 8,000 | $20,000 | NM | | | Impairing secondary containment | 2.2(a)3ii | $10,000 | $20,000 | $50,000 | NM | | | Improper design of heating coil system | 2.2(c) | $4,000 | $8,000 | $20,000 | NM | | | Failure to equip storage tanks with devices capable of detecting overfills and initiating shutdown mechanisms | 2.2(d) | $10,000 | $20,000 | $50,000 | NM | | | Failure to equip storage tanks with a high high liquid level cutoff device | 2.2(d)1 | $10,000 | $20,000 | $50,000 | NM | | | Failure to equip storage tanks with direct communication | 2.2(d)2 | $10,000 | $20,000 | $50,000 | NM | | | Failure to attend storage tanks of 2,000 gallons or less during filling | 2.2(e) | $4,000 | $8,000 | $20,000 | NM | | | Failure to direct overfill or vent lines into appropriate holding areas | 2.2(f) | $10,000 | $20,000 | $50,000 | NM | | | Failure to locate mobile or portable storage tanks in areas protected by secondary containment | 2.2(g) | $20,000 | $40,000 | $50,000 | NM | | | Failure to equip tote, drum, bag , or other storage areas with secondary containment | 2.2(h) | $20,000 | $40,000 | $50,000 | NM | | | Failure to equip a tank car or tank truck loading/unloading area with secondary containment | 2.3(a) | $20,000 | $40,000 | $50,000 | NM | | | Failure to inspect the lowermost drain and all outlets of a tank car or tank truck prior to filling | 2.3(c) | $ 2,000 | $4,000 | $10,000 | NM | | | Failure to examine for leakage and secure valves on all manifolds of a tank car or tank truck prior to departure | 2.3(d) | $2,000 | $4,000 | $10,000 | NM | | | Failure to utilize a system to prevent premature departure | 2.3(e) | $5,000 | $10,000 | $25,000 | NM | | | Failure to attend a tank car | 2.3(f) | $10,000 | $20,000 | $50,000 | NM | | | Failure to attend a tank truck | 2.3(g) | $5,000 | $10,000 | $25,000 | NM | | | Failure to properly mark in-facility pipes | 2.4(a) | $10,000 | $20,000 | $50,000 | M | 60 | | Failure to have double wall s or secondary containment and a leak detection device for new buried in-facility pipes | 2.4(b) | $10,000 | $20,000 | $50,000 | NM | | | Failure to equip existing in-facility buried pipe with leak detection devices | 2.4(c)1 | $10,000 | $20,000 | $50,000 | NM | | | Failure to implement a maintenance and repair program for existing in-facility buried pipes | 2.4(c)2 | $10,000 | $20,000 | $50,000 | NM | | | Failure to make necessary repairs, upgrades , or replacements to exposed in-facility pipe | 2.4(d) | $20,000 | $40,000 | $50,000 | NM | | | Failure to cap, blank-flange , or physically remove out-of-service in-facility pipe | 2.4(e) | $20,000 | $40,000 | $50,000 | NM | | | Improper design of pipe supports | 2.4(f) | $4,000 | $8,000 | $20,000 | M | 90 | | Failure to minimize the chance of vehicular collision with in-facility pipe | 2.4(g) | $4,000 | $8,000 | $20,000 | NM | | | Failure to provide secondary containment for process areas | 2.5(a) | $20,000 | $40,000 | $50,000 | NM | | | Failure to provide for a hazardous substance which drained into process wastewater lines | 2.5(b) | $4,000 | $8,000 | $20,000 | NM | | | Leaks are not prevented from becoming discharges | 2.6(a) | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment does not block all probable discharge routes | 2.6(c)1 | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment does not allow for six inches of rainwater | 2.6(c)2 | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment for storage area has insufficient capacity | 2.6(c)2i | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment for loading/unloading area has insufficient capacity | 2.6(c)2ii | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment for buried pipes has insufficient capacity | 2.6(c)2iii | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment for process area has insufficient capacity | 2.6(c)2iv | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment is not impermeable | 2.6(c)3 | $10,000 | $20,000 | $50,000 | NM | | | Hazardous substances can escape to the environment | 2.6(c)4 | $10,000 | $20,000 | $50,000 | NM | | | Diversion system cannot handle flow rate | 2.6(c)5 | $10,000 | $20,000 | $50,000 | NM | | | Incompatible materials stored in the same secondary containment | 2.6(c)6 | $10,000 | $20,000 | $50,000 | NM | | | Secondary containment capacity impaired | 2.6(c)7 | $10,000 | $20,000 | $50,000 | NM | | | Failure to maintain adequate length of containment devices | 2.7(b) | $20,000 | $40,000 | $50,000 | NM | | | Failure to deploy a containment device when required | 2.7(c) | $20,000 | $40,000 | $50,000 | NM | | | Failure to maintain a containment device on standby when required | 2.7(d) | $20,000 | $40,000 | $50,000 | NM | | | Failure to properly deploy a containment device | 2.7(e) | $10,000 | $20,000 | $50,000 | NM | | | Failure to properly deploy a containment device | 2.7(f) | $10,000 | $20,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during storm | 2.7(g)1 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during fires | 2.7(g)2 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during transfer system malfunction | 2.7(g)3 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during transfer system break | 2.7(g)4 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations when there is an apparent discrepancy | 2.7(g)5 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during communications breakdown | 2.7(g)6 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations when hazardous substances are observed in the water | 2.7(g)7 | $30,000 | $50,000 | $50,000 | NM | | | Commencement or continuation of transfer operations during a discharge | 2.7(g)8 | $30,000 | $50,000 | $50,000 | NM | | | Failure to properly clean up or remove a discharge prior to removing a containment device | 2.7(h) | $40,000 | $50,000 | $50,000 | NM | | | Failure to secure or retrieve a containment device | 2.7(i) | $10,000 | $20,000 | $50,000 | M | 30 | | Failure to clean or dispose of a containment device that is contaminated | 2.7(i) | $10,000 | $20,000 | $50,000 | NM | | | Failure to prominently display notification requirements | 2.7(j) | $1,000 | $2,000 | $5,000 | M | 30 | | Improper or inadequate illumination of facility transfer connection points | 2.8(a)1 | $10,000 | $20,000 | $50,000 | NM | | | Improper or inadequate illumination of vessel transfer connection points | 2.8(a)2 | $10,000 | $20,000 | $50,000 | NM | | | Improper or inadequate illumination of facility work areas | 2.8(a)3 | $10,000 | $20,000 | $50,000 | NM | | | Improper or inadequate illumination of vessel work areas | 2.8(a)4 | $10,000 | $20,000 | $50,000 | NM | | | Improper or inadequate illumination of water surface areas | 2.8(b) | $10,000 | $20,000 | $50,000 | NM | | | Failure to protect a hazardous substance from being carried off or discharged into flood waters | 2.9(a),(b) | $20,000 | $40,000 | $50,000 | NM | | | Failure to conduct visual inspections of marine transfer areas | 2.10(a)1 | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of secondary containment that is not impermeable | 2.10(a)2 | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of loading or unloading areas | 2.10(a)3 | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of process areas | 2.10(a)4 | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of storage areas and pipes | 2.10(a)5 | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of equipment | 2.10(a)6i | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of fences and locks | 2.10(a)6ii | $4,000 | $8,000 | $20,000 | NM | | | Failure to conduct visual inspections of cleanup and removal equipment and supplies | 2.10(a)6iii | $4,000 | $8,000 | $20,000 | NM | | | Failure to keep documentation of visual inspections | 2.10(b) | $1,000 | $2,000 | $5,000 | N M | | | Failure to keep hazardous substances in suitable containers or protect them from the elements and the possibility of leakage | 2.11(a) | $20,000 | $40,000 | $50,000 | NM | | | Failure to repair, replace or take out of service any leaking equipment | 2.11(b) | 10,000 | $20,000 | $50,000 | NM | | | Failure to clean up a leak of a hazardous substance | 2.11(c) | $10,000 | $20,000 | $50,000 | NM | | | Failure to have adequate quantities of cleanup materials on hand | 2.11(d) | $4,000 | $8,000 | $20,000 | NM | | | Failure to maintain a supply of safety equipment | 2.11(e) | $4,000 | $8,000 | $20,000 | NM | | | Failure to maintain secondary containment or diversion system free of debris | 2.11(f) | $10,000 | $20,000 | $50,000 | NM | | | Failure to implement a training program | 2.12(a) | $20,000 | $40,000 | $50,000 | NM | | | Failure to provide written job descriptions | 2.12(b)1 | $4,000 | $8,000 | $20,000 | M | 30 | | Failure to provide minimum training consisting of time periods for training | 2.12(b)2 | $4,000 | $8,000 | $20,000 | M | 30 | | Failure to provide procedures to determine ability | 2.12(b)3 | $4,000 | $8,000 | $20,000 | M | 30 | | Failure to provide training consisting of general orientation and initial training | 2.12(c)1 | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide job-specific training on SOPs | 2.12(c)2i | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide training on cleanup and removal | 2.12(c)2ii | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide training on fires, leaks , and discharges | 2.12(c)2iii | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide training on equipment familiarization | 2.12(c)2iv | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide training on new or updated SOPs | 2.12(c)3 | $4,000 | $8,000 | $20,000 | N M | | | Failure to provide refresher training | 2.12(c)4 | $4,000 | $8,000 Penalty assessed on a per calendar year basis | $20,000 | N M | | | Failure to specify qualifications of trainers | 2.12(d) | $4,000 | $8,000 | $20,000 | M | 30 | | Failure to document training of personnel, subjects covered, and training dates | 2.12(e) | $1,000 | $2,000 | $5,000 | NM | | | Failure to have procedures to ensure training of employees of outside contractors | 2.12(f) | $2,000 | $4,000 | $10,000 | N M | | | Failure to provide adequate lighting | 2.13(a) | $10,000 | $20,000 | $50,000 | NM | | | Failure to provide adequate security or to follow security procedures | 2.13(b) | $10,000 | $20,000 | $50,000 | NM | | | Failure to establish standard operating procedures (SOPs) | 2.14(a) | $ 4,000 | $ 8,000 | $20,000 | NM | | | Failure have SOPs in all appropriate languages | 2.14(a) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to make copies of the SOPs readily available | 2.14(b) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to make copies of the SDS or fact sheets readily available | 2.14(c) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to include a description of the operation in an SOP | 2.14(d)1 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include procedures for visual inspections in an SOP | 2.14(d)2 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include procedures and conditions for normal operation in an SOP | 2.14(d)3 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include a description of equipment or alarms in an SOP | 2.14(d)4 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include a description of leak or discharge conditions in an SOP | 2.14(d)5 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include process flow sheets in an SOP | 2.14(e)1 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include a description of abnormal conditions in an SOP | 2.14(e)2 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include pre-startup procedures in an SOP | 2.14(e)3 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include startup procedures in an SOP | 2.14(e)4 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include shutdown procedures in an SOP | 2.14(e)5 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include procedures on maintenance in an SOP | 2.14(e)6 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to include log sheets and checklists in an SOP | 2.14(e)7 | $1,000 | $2,000 Penalty assessed per SOP | $5,000 | M | 30 | | Failure to incorporate modifications of procedures into the SOPs prior to implementation | 2.14(g) | $1,000 | $2,000 | $5,000 | NM | | | Failure to maintain and make available a current index of SOPs | 2.14(h) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to maintain required records for three years for the following: | 2.15(a) | | | | | | | Employee training | 2.15(a)1 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Drills for discharge prevention | 2.15(a)2 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Inspection of cleanup and removal equipment and supplies | 2.15(a)3 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Facility inventories | 2.15(a)4 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to maintain required records for 10 years for the following: | 2.15(b) | | | | | | | Failure to maintain documentation of discharges | 2.15(b)1 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to maintain documentation of discharge confirmation reports | 2.15(b)2 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to maintain required records for 10 years or the life of the equipment | 2.15(c) | $1,000 | $2,000 | $5,000 | NM | | | Failure to maintain required records | 2.15(d) | | | | | | | Failure to maintain for daily visual inspections for 10 years or the life of the tank | 2.15(d)1 | $ 1,000 | $ 2,000 Penalty assessed on a per tank basis | $ 5,000 | NM | | | Failure to maintain for monthly inspections for 10 years or the life of the tank | 2.15(d)2 | $ 1,000 | $ 2,000 Penalty assessed on a per tank basis | $ 5,000 | NM | | | Failure to maintain for all other integrity testing, inspection, and repair for the life of the tank | 2.15(d)3 | $ 1,000 | $ 2,000 Penalty assessed on a per tank basis | $ 5,000 | NM | | | Failure to make required records available for inspection | 2.15(e) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to ensure records can be retrieved in event of loss or destruction | 2.15(f) | $2,000 | $4,000 | $10,000 | NM | | | Failure to perform initial integrity testing on a new tank | 2.16(b) | | Penalty assessed on a per tank basis | | NM | | | SIZE OF TANK (gallons) | | | | | | | | 2,001-10,000 | | $500 | $1,000 | $2,500 | | | | 10,001-20,000 | | $1,000 | $2,000 | $5,000 | | | | 20,001-50,000 | | $2,500 | $5,000 | $12,500 | | | | 50,001-100,000 | | $5,000 | $10,000 | $25,000 | | | | 100,001-200,000 | | $10,000 | $20,000 | $50,000 | | | | 200,001-300,000 | | $15,000 | $30,000 | $50,000 | | | | 300,001 and greater | | $20,000 | $40,000 | $50,000 | | | | Failure to follow API 653 for | 2.16(d)1 | $ 2,000 | $ 4,000 | $10,000 | NM | | | | | The above penalties shall apply for other requirements of the API 653 not otherwise specified below. Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | Monthly periodic inspection | | $ 1,000 | $ 2,000 | $ 4,000 | NM | | | Formal external inspection | | $ 2,000 | $ 4,000 | $10,000 | NM | | | Ultrasonic thickness testing | | $ 2,000 | $ 4,000 | $10,000 | NM | | | Formal internal inspection | | $ 4,000 | $ 8,000 | $20,000 | NM | | | Failure to follow API 510 or ASME Section VIII for field-erected tank | 2.16(d)2 | $ 2,000 | $ 4,000 | $10,000 | NM | | | The above penalties shall apply for other requirements of the API 510 or ASME Section VIII not otherwise specified below. Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | | Formal external inspection | | $2,000 | $4,000 | $10,000 | NM | | | Formal internal or on-stream inspection | | $4,000 | $8,000 | $20,000 | NM | | | Failure to follow API 653 or SP001 for shop-built tank | 2.16(e)1 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | The above penalties shall apply for other requirements of the API 653 or SP001 not otherwise specified below. Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | | API 653: Monthly periodic inspection | | $ 1,000 | $ 2,000 | $ 4,000 | NM | | | Formal external inspection | $ 2,000 | $ 4,000 | $10,000 | | NM | | | Ultrasonic thickness testing | $ 2,000 | $ 4,000 | $10,000 | | NM | | | Formal internal inspection | $ 4,000 | $ 8,000 | $20,000 | | NM | | | SP001: (All Categories) AST record | $ 1,000 | $ 2,000 | $ 4,000 | | NM | | | Periodic (Monthly and Annual Inspections) | $ 1,000 | $ 2,000 | $ 4,000 | | NM | | | Formal external inspection | $ 2,000 | $ 4,000 | $10,000 | | NM | | | Leak test | $ 2,000 | $ 4,000 | $10,000 | | NM | | | Formal internal inspection | $ 4,000 | $ 8,000 | $20,000 | | NM | | | Failure to follow API 510 or 2.16(e)2 | $ 2,000 | $ 4,000 | $10,000 | | NM | | | ASME VIII for shop-built tank | The above penalties shall apply for other requirements of the API 510 or ASME VIII not otherwise specified below. Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | Formal external inspection | $ 2,000 | $ 4,000 | $10,000 | | NM | | | Formal internal or on-stream inspection | | $ 4,000 | $ 8,000 | $20,000 | NM | | | Failure to follow established protocol for FRP tanks | 2.16(f) | | | | | | | Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | | Formal external inspection | | $2,000 | $4,000 | $10,000 | NM | | | Acoustic Emission Testing (ASTM E1067) | | $2,000 | $4,000 | $10,000 | NM | | | Formal internal inspection | | $2,000 | $4,000 | $10,000 | NM | | | Failure to follow established protocol | 2.16(g) | | | | | | | Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | | Formal external inspection | | $ 2,000 | $ 4,000 | $10,000 | NM | | | Formal internal inspection | | $ 2,000 | $ 4,000 | $10,000 | NM | | | Failure to follow established protocol | 2.16(h) | | | | | | | Penalty assessed on a per tank and per testing/inspection component basis, as listed: | | | | | | | | Shell thickness test | 2.16(h)1 | $ 2,000 | $ 4,000 | $10,000 | NM | | | Bottom thickness test | 2.16(h)2 | $ 2,000 | $ 4,000 | $10,000 | NM | | | External visual inspection of tank | 2.16(h)3 | $ 1,000 | $ 2,000 | $5,000 | NM | | | Internal visual inspection of tank | 2.16(h)4 | $ 2,000 | $ 4,000 | $10,000 | NM | | | External visual inspection of foundation and ancillary equipment | 2.16(h)5 | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to follow approved alternative protocol | 2.16(i) | $4,000 | $8,000 | $20,000 | NM | | | Penalty assessed on a per tank and per testing/inspection component basis | | | | | | | | Failure to take tank out of service following a failed integrity test or inspection | 2.16(j) | $20,000 | $40,000 | $50,000 | NM | | | Failure to meet minimum reporting standard | 2.16(k) | $ 1,000 | $ 2,000 | $ 5,000 | M | 30 | | Failure to prepare repair schedule | 2.16(l) | $ 5,000 | $10,000 Penalty assessed on a per tank basis | $25,000 | NM | | | Failure to implement the repair schedule | 2.16(l) | $ 5,000 | $10,000 Penalty assessed on a per tank basis | $25,000 | NM | | | Failure to document disposition of all recommended repairs and monitoring, including reasons for recommended actions that are delayed or deemed unnecessary | 2.16(l) | $ 1,000 | $ 2,000 Penalty assessed on a per tank basis | $ 5,000 | M | 30 |

3. The violations of N.J.A.C 7:1E-3, Transmission Pipelines, and the civil administrative penalty amounts for each violation, are as set forth in the following table, unless modified pursuant to (d) below:

| Failure to register | 3.2(a) | $2,000 | $4,000 | $10,000 | NM | | | --- | --- | --- | --- | --- | --- | --- | | Failure to include owner/operator information in a registration | 3.2(a)1 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include name and contact information in a registration | 3.2(a)2 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include registered agent information in a registration | 3.2(a)3 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include storage capacity and location in a registration | 3.2(a)4 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include a description of hazardous substances in a registration | 3.2(a)5 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include facilities served by the pipeline in a registration | 3.2(a)6 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include transfer capacity and average daily throughput in a registration | 3.2(a)7 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include maps in a registration | 3.2(a)8 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include a pipe inventory in a registration | 3.2(a)9 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include a certification in a registration | 3.2(a)10 | $500 | $1,000 | $2,500 | M | 30 | | Failure to conform to 49 CFR 195 | 3.3 | $4,000 | $8,000 | $20,000 | NM | | | Failure to submit the required information | 3.4(a) | $2,000 | $4,000 | $10,000 | NM | | | Failure to submit a summary of the action plan | 3.4(a)1 | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit a list of containment and removal equipment | 3.4(a)2 | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit a list of trained personnel | 3.4(a)3 | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit information about the response coordinator | 3.4(a)4 | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit procedures for determining recycling or disposal options | 3.4(a)5 | $500 | $1,000 | $2,500 | M | 30 | | Failure to report a change in information | 3.5(a) | $ 1,000 | $ 2,000 | $ 5,000 | M | 30 | | Failure to register a newly installed transmission pipeline | 3.5(b) | $ 2,000 | $ 4,000 | $10,000 | NM | |

4. The violations of N.J.A.C. 7:1E-4, Plans, and the civil administrative penalty amounts for each violation, are as set forth in the following table, unless modified pursuant to (d) below:

| Failure to appoint a facility contact | 4.2(a)2 | $1,000 | $2,000 | $5,000 | M | | | --- | --- | --- | --- | --- | --- | --- | | Failure to appoint a response coordinator | 4.3(a) | $2,000 | $4,000 | $10,000 | NM | | | Failure to perform an annual emergency response drill | 4.3(b)4 | $4,000 | $8,000 Penalty assessed on a per drill basis | $20,000 | NM | | | Failure to include the required facility personnel | 4.3(b)4i | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to base drill on different scenarios from year to year | 4.3(b)4ii | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Conducted table top drill in consecutive years | 4.3(b)4iii | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to critique the drill in writing | 4.3(b)4iv | $ 1,000 | $ 2,000 | $ 5,000 | NM | | | Failure to have adequate cleanup equipment and personnel available | 4.3(b)5, 6 | $10,000 | $20,000 | $50,000 | NM | | | Failure to demonstrate financial responsibility | 4.4(a) | $ 5,000 | $10,000 | $25,000 | NM | | | Failure to demonstrate financial responsibility in the full amount | 4.4(b) | $10,000 | $20,000 | $50,000 | NM | | | Failure to word the letter as specified | 4.4(g) | $ 2,000 | $ 4,000 | $10,000 | M | 30 | | Failure to word the guarantee as specified | 4.4(k) | $2,000 | $4,000 | $10,000 | M | 30 | | Failure to word the liability insurance as specified | 4.4(l) | $2,000 | $4,000 | $10,000 | M | 30 | | Failure to word the surety bond as specified | 4.4(m) | $2,000 | $4,000 | $10,000 | M | 30 | | Failure to word the letter of credit as specified | 4.4(n) | $2,000 | $4,000 | $10,000 | M | 30 | | Failure to notify of bankruptcy commencement | 4.4(o) | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit a DPCC and DCR plan | 4.5(a) | $20,000 | $40,000 | $50,000 | NM | | | Failure to submit a DPCC and DCR plan for a newly designated major facility | 4.5(c) | $20,000 | $40,000 | $50,000 | NM | | | Failure to submit a DPCC and DCR plan for a new major facility | 4.5(d) | $20,000 | $40,000 | $50,000 | NM | | | Failure to submit information when requested by the Department | 4.5(f) | $2,000 | $4,000 | $10,000 | M | 30 | | Failure to submit copy of approved plan | 4.5(g) | $500 | $1,000 | $2,500 | M | 30 | | Failure to implement an approved DPCC or DCR plan | 4.6(f) | $4,000 | $8,000 | $20,000 | NM | | | Failure to maintain copy of the plan on-site | 4.6(g) | $2,000 | $4,000 | $10,000 | NM | | | Failure to resubmit an acceptable plan | 4.7(c) | $10,000 | $20,000 | $50,000 | NM | | | Failure to provide notice of new construction, installation or modification | 4.8(a) | $2,000 | $4,000 | $10,000 | NM | | | Failure to submit an amendment | 4.8(b) | $4,000 | $8,000 | $20,000 | M | 30 | | Failure to submit copy of an amendment | 4.8(d) | $500 | $1,000 | $2,500 | M | 30 | | Failure to submit information changes | 4.8(e) | $1,000 | $2,000 | $4,000 | M | 30 | | Failure to renew DPCC/DCR plans | 4.9(a) | $4,000 | $8,000 | $20,000 | NM | | | Failure to submit copy of an approved plan | 4.9(c) | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the required certification | 4.11(a) | $4,000 | $8,000 | $20,000 | NM | | | Failure to provide the required certification | 4.11(b) | $4,000 | $8,000 | $20,000 | NM | | | Failure to provide the required certification | 4.11(e) | $4,000 | $8,000 | $20,000 | NM | | | Failure to provide the required certification | 4.11(f) | $4,000 | $8,000 | $20,000 | NM | |

5. The violations of N.J.A.C. 7:1E-5, Notification, Response and Reporting, and the civil administrative penalty amounts for each violation, are as set forth in the following table, unless modified pursuant to (d) below:

| Failure to promptly notify the Department of a discharge | 5.2(a) | $10,000 | $20,000 | $50,000 | NM | | | --- | --- | --- | --- | --- | --- | --- | | Failure to provide all required information upon notification | 5.2(b) | $500 | $1,000 | $2,500 | M | 30 | | Failure to notify the Department of a discharge | 5.3(a) | $10,000 | $20,000 | $50,000 | NM | | | Notification not immediate | 5.3(b) | $2,000 | $4,000 | $10,000 | NM | | | Failure to provide information on the person reporting the discharge | 5.3(c)1 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the location of the discharge | 5.3(c)2 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the name of the hazardous substance discharged | 5.3(c)3 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide an estimated quantity of each hazardous substance discharged | 5.3(c)4 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide time and date information | 5.3(c)5 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide information on actions taken | 5.3(c)6 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide information on person(s) responsible | 5.3(c)7 | $500 | $1,000 | $ [1,250] 2,500 | M | 30 | | Failure to prominently display notification requirements | 5.3(d) | $1,000 | $2,000 | $5,000 | M | 30 | | Failure to maintain documentation | 5.3(e) | $1,000 | $2,000 | $5,000 | NM | 30 | | Failure to notify the Department of a discharge of aircraft fuel | 5.4(a) | $6,000 | $12,000 | $30,000 | NM | | | Failure to provide the person causing the discharge | 5.4(b)1 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the amount of hazardous substance discharged | 5.4(b)2 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the time the discharge occurred | 5.4(b)3 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the location of the discharge | 5.4(b)4 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide wind speed and direction | 5.4(b)5 | $500 | $1,000 | $2,500 | M | 30 | | Failure to provide the area likely to be affected by the discharge | 5.4(b)6 | $500 | $1,000 | $2,500 | M | 30 | | Failure to notify the Department of a malfunction in a discharge detection system | 5.5(a) | $4,000 | $8,000 | $20,000 | NM | | | Notification not immediate | 5.5(b) | $2,000 | $4,000 | $10,000 | NM | | | Failure to notify the Department of the status of a malfunctioning discharge detection system | 5.5(c) | $2,000 | $4,000 | $10,000 | NM | | | Failure to take immediate action to stop a discharge | 5.7(a)1 | $40,000 | $50,000 | $50,000 | NM | | | Failure to follow the DCR plan | 5.7(a)2i | $40,000 | $50,000 | $50,000 | NM | | | Failure to coordinate any remedial action with the Department | 5.7(a)3 | $4,000 | $8,000 | $20,000 | NM | | | Failure to submit a confirmation report | 5.8(a) | $4,000 | $8,000 | $20,000 | NM | | | Failure to include information on the individual that reported the discharge | 5.8(c)1 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include information on the individual submitting the report | 5.8(c)2 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include information on the owner(s) or operator(s) of where the discharge occurred | 5.8(c)3 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include the Communications Center number | 5.8(c)4 | $500 | $1,000 | $2,500 | M | 30 | | Failure to include the source of the discharge | 5.8(c)5 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include the location of the discharge | 5.8(c)6 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include the name(s) and CAS number(s) of hazardous substance(s) discharged | 5.8(c)7 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include quantities of hazardous substances discharged | 5.8(c)8 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include date and time information individual that reported the discharge | 5.8(c)9 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include a description of the measures taken and costs | 5.8(c)10 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include measures taken or proposed | 5.8(c)11 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include information on the entities involved in the cleanup | 5.8(c)12 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include supplemental information | 5.8(c)13 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include requested information | 5.8(c)14 | $500 | $1,000 | $2,000 | M | 30 | | Failure to include certification | 5.8(c)15 | $500 | $1,000 | $2,000 | M | 30 | | Failure to provide additional information | 5.8(d) | $500 | $1,000 | $2,000 | M | 30 | | Failure to file a requested amendment following a discharge | 5.11 | $4,000 | $8,000 | $20,000 | NM | |

²The column headed "Category of Offense" is descriptive in nature and to be used for easy reference only. The rule language cited in the column headed "Citation" shall determine the specific violation.

³ The column headed "Minor" contains the designation of whether a violation is considered minor or non-minor pursuant to the Compliance Grace Period Law (P.L.1995, c.296; N.J.S.A. 13:1D-125 to 133) and will be considered for a grace period in accordance with N.J.A.C. 7:1E-6.9, below. The designation "M" is for a minor violation, and "NM" is for a non-minor violation.

⁴ The column headed "Minor Days" establishes, for those violations designated as minor, the number of calendar days the violator will be given to correct the violation and achieve compliance, in accordance with N.J.A.C. 7:1E-6.9, below.

(d) The Department may modify the amount of a civil administrative penalty under (c) above, based upon any or all of the following:

1. Mitigating or extenuating circumstances;

2. The implementation of prevention measures in addition to those minimally required by applicable statute or rule;

3. The full payment by the violator of a specified part of the civil administrative penalty assessed if made within a time period established by the Department in an administrative order or notice of civil administrative penalty assessment and provided that the violator waives the right to request an adjudicatory hearing on the civil administrative penalty; or

4. Any other circumstances or conditions acceptable to the Department.

History

• Amended by R.1996 d.252, effective 6/3/1996.
• See: 27 N.J.R. 2337(a), 27 N.J.R. 2882(a), 28 N.J.R. 2858(a).
• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• In (b), deleted ", exclusive of registration requirements"; and in (c), rewrote the tables in 2, 4 and 5.
• Amended by R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).
• Rewrote (c).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In (a), deleted "and 4" preceding "below"; and rewrote the tables in (c).
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

N.J. Admin. Code § 7:1E-6.9 Conditions of grace period

(a) Each violation identified in the penalty tables at N.J.A.C. 7:1E-6.8 by an "M" in the column with the heading "Minor," for which conditions at (c) below are satisfied, is a minor violation and is subject to a grace period, the length of which (in days) is indicated in the column with the heading "Minor Days."

(b) Each violation identified in the penalty table at N.J.A.C. 7:1E-6.8 by an "NM" in the column with the heading "Minor" is a non-minor violation and is not subject to a grace period.

(c) The Department shall provide a grace period for any violation identified as minor in accordance with the tables at N.J.A.C. 7:1E-6.8, provided that the following conditions are met:

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 activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the Department;

3. The person responsible for the violation has not been identified in a previous enforcement action by the Department or local government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period; and

4. The person responsible for the violation has not been identified by the Department or 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.

(d) For a violation that is designated as minor in accordance with both the tables at N.J.A.C. 7:1E-6.8 and (c) above, the following provisions apply:

1. The Department shall issue a notice of violation to the person responsible for the minor violation that:

i. Identifies the condition or activity that constitutes the violation and the specific statutory and regulatory provision or other requirement violated; and

ii. Specifies that a penalty may be imposed unless compliance has been achieved within the specified grace period;

2. If a person responsible for a minor violation corrects that violation and demonstrates to the Department that compliance has been achieved within the period specified in the notice of violation, the Department shall not impose a penalty for the violation, and the violation will not be considered an offense for purposes of determining whether the violation constitutes a second or subsequent offense;

3. If the person responsible for the minor violation seeks additional time beyond the specified grace period to achieve compliance, the person shall request an extension of the specified grace period. The request shall be submitted no later than one week before the end of the specified grace period and include the anticipated time needed to achieve compliance, the specific cause or causes of the delay, and any measures taken or to be taken to minimize the time needed to achieve compliance and shall be certified in accordance with N.J.A.C. 7:1E-4.11. The Department may, at its discretion, approve in writing, an extension, which shall not exceed 90 days, to accommodate the anticipated delay in achieving compliance. In exercising its discretion to approve a request for an extension, the Department may consider the following:

i. Whether the violator has taken reasonable measures to achieve compliance in a timely manner;

ii. Whether the delay has been caused by circumstances beyond the control of the violator;

iii. Whether the delay will pose a risk to the public health, safety, and natural resources; and

iv. Whether the delay will materially or substantially undermine or impair the goals of the regulatory program;

4. If the person responsible for the minor violation fails to demonstrate to the Department that the violation has been corrected and compliance has been achieved within the grace period specified in the notice of violation, or within the approved extension, if any, the Department may, in accordance with the provisions of this chapter, impose a penalty that is retroactive to the date the notice of violation was first issued; and

5. The person responsible for a minor violation shall not request more than one extension of a grace period specified in a notice of violation.

History

• New Rule, R.2001 d.355, effective 10/1/2001.
• See: 33 N.J.R. 1255(a), 33 N.J.R. 3518(a).

Subchapter 7 CONFIDENTIALITY CLAIMS

N.J. Admin. Code § 7:1E-7.1 Procedure for making a claim

(a) Any person required to submit information to the Department under this chapter, or allow the Department to obtain such information, which such person believes in good faith to constitute confidential information, may assert a confidentiality claim by following the procedures set forth in this subchapter.

(b) A claimant shall submit to the Department (at the address provided in N.J.A.C. 7:1E-7.3) a confidential copy and, upon the Department's request, a preliminary public copy of any record containing assertedly confidential information. The preliminary public copy shall carry a notation stating that confidential information has been deleted. The Department may disclose the preliminary public copy to any person, without restriction or limitation.

(c) The claimant shall label the first page of the confidential copy "CONFIDENTIAL COPY." At the top of each page of the confidential copy, which page contains information that the claimant asserts is confidential information, the claimant shall place a boldface heading reading "CONFIDENTIAL." The claimant shall clearly underscore or highlight all information in the confidential copy which the claimant asserts to be confidential, in a manner which shall be clearly visible on photocopies of the confidential copy.

(d) The claimant shall seal the confidential copy in an envelope displaying the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope shall be enclosed in another envelope for transmittal to the Department. The outer envelope shall bear no markings indicating the confidential nature of the contents.

(e) The claimant shall send the package containing the confidential copy to the Department by certified mail, return receipt requested, or by other means providing a receipt for delivery.

(f) The claimant shall include in the package a written designation of a person to receive notices pursuant to N.J.A.C. 7:1E-7.2.

N.J. Admin. Code § 7:1E-7.2 Designation by claimant of an addressee for notices and inquiries

A claimant shall designate a person as the proper addressee of communications from the Department under N.J.A.C. 7:1E-7, 8, 9 and 10. To designate such a person, the claimant shall submit the following information to the Department in writing: the name and address of the claimant; the name, address, and telephone number of the designated person; and a request that all Department inquiries and communications (oral and written), including without limitation the inquiries and notices listed in N.J.A.C. 7:1E-7.3(a), be directed to the designee.

N.J. Admin. Code § 7:1E-7.3 Correspondence, inquiries and notices

(a) The Department shall direct all correspondence, inquiries and notices to the person designated by the claimant pursuant to N.J.A.C. 7:1E-7.2, including without limitation the following:

1. Notices requesting substantiation of claims, under N.J.A.C. 7:1E-8.2(a)1 ii;

2. Notices of denial of confidentiality claims and proposed disclosure of information, under N.J.A.C. 7:1E-8.5(a)1;

3. Notices concerning shortened comment and/or waiting periods under N.J.A.C. 7:1E-9.3(a);

4. Notices of disclosure under N.J.A.C. 7:1E-9.4; and

5. Notices of proposed use of confidential information in administrative proceedings, under N.J.A.C. 7:1E-9.7.

(b) A claimant shall direct all correspondence, inquiries, notices and submissions concerning confidentiality claims under this chapter to the Department at the following address::

Bureau of Release Prevention

New Jersey Department of Environmental Protection

P.O. Box 420, Mail Code 22-03D

Trenton, New Jersey 08625-0420

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Amended by R.2007 d.93, effective 4/2/2007.
• See: 38 N.J.R. 4285(a), 39 N.J.R. 1253(a).
• In the address in (b), substituted "Release" for "Discharge".
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

Subchapter 8 CONFIDENTIALITY DETERMINATIONS

N.J. Admin. Code § 7:1E-8.1 Time for making confidentiality determinations

(a) The Department shall make a confidentiality determination:

1. If the Department receives a request, by a person to whom the Department is restricted from disclosing confidential information pursuant to N.J.A.C. 7:1E-10, to inspect or copy records containing assertedly confidential information which is the subject of a confidentiality claim; or

2. Before taking any action which is inconsistent with requirements for treatment of confidential information set forth in N.J.A.C. 7:1E-10.

(b) The Department may, in its discretion, make a confidentiality determination at any time.

N.J. Admin. Code § 7:1E-8.2 Notice of initial confidentiality determination, and of requirement to submit substantiation of claim

(a) If the Department initially determines that any of the assertedly confidential information may be confidential information, the Department shall:

1. Notify each claimant who is known to have asserted a claim applicable to such information, and who has not previously been furnished with notice with regard to the information in question, of the following:

i. That the Department is in the process of making a confidentiality determination with respect to the claimant's claim;

ii. That the claimant is required to substantiate the claim as required by N.J.A.C. 7:1E-8.3;

iii. The address of the office to which the claimant's substantiation must be addressed;

iv. The time allowed for submission of substantiation, pursuant to N.J.A.C. 7:1E-8.4;

v. The method for requesting a time extension under N.J.A.C. 7:1E-8.4(b); and

vi. That a claimant's failure to furnish substantiation within the time allocated in N.J.A.C. 7:1E-8.4 shall operate as a waiver of the claimant's claim.

2. Furnish, to any requester whose request for inspection or copying of the information is pending, notice that:

i. The information which is the subject of the request may be confidential information;

ii. The Department must undertake further inquiry before granting or denying the requester's request; and

iii. After the Department has made a confidentiality determination concerning the information which is the subject of the request, the Department will grant or deny the request.

(b) The Department shall send the notice required by paragraphs (a)1 and 2 above by certified mail, return receipt requested, or by other means providing a receipt for delivery.

(c) If the Department is able to determine whether all of the assertedly confidential information is or is not confidential information, without the need for submission of substantiation under N.J.A.C. 7:1E-8.3, such determination shall have the effect of a final confidentiality determination pursuant to N.J.A.C. 7:1E-8.5. The Department shall provide such notices of the determination as are required by N.J.A.C. 7:1E-8.5.

N.J. Admin. Code § 7:1E-8.3 Substantiation of confidentiality claims

(a) If the Department has determined that any assertedly confidential information may be confidential information, and notified the claimant pursuant to N.J.A.C. 7:1E-8.2(a) and (b), the claimant shall substantiate the confidentiality claim by submitting information to the Department in the following areas within the time allotted in N.J.A.C. 7:1E-8.4:

1. Measures taken by the claimant to prevent disclosure of the information to others, including evidence that the information is not contained in materials which are routinely available to the general public, including without limitation initial and final orders in contested case adjudications, press releases, copies of speeches, pamphlets and educational materials;

2. The extent to which the information has been disclosed to others and whether it was disclosed to other persons either by the claimant (except in a manner which protects the confidentiality of the information) or without the consent of the claimant (other than by subpoena or by discovery based on a showing of special need in a judicial proceeding, arbitration, or other proceeding in which the claimant was required to disclose the information to such other persons, as long as the information has not become available to persons not involved in the proceeding), and the precautions taken to prevent further disclosure;

3. If the Department, EPA or any other agency has previously made a confidentiality determination relevant to the pending confidentiality claim, copies of all such confidentiality determinations;

4. A description of any substantial harmful effects which disclosure would have upon the claimant's competitive position or national security, an explanation of why such harmful effects are substantial, and an explanation of the causal relationship between disclosure and such harmful effects;

5. Evidence that no law, regulation (including, without limitation, N.J.A.C. 7:1E-8.10 or any other regulations of the Department), or order by a court or other tribunal of competent jurisdiction specifically requires disclosure of the information or provides that the information is not confidential information;

6. The period of time for which the claimant desires that the Department treat the assertedly confidential information as confidential information; and

7. Any other substantiation which is relevant in establishing that the assertedly confidential information is confidential information.

(b) The claimant may assert a confidentiality claim for any information submitted to the Department by the claimant as part of his or her substantiation pursuant to this section. If the claimant fails to assert a confidentiality claim for such information at the time of submission, the claimant shall be deemed to have waived all such claims with respect to the information.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 New Jersey Register 2730(a), 28 New Jersey Register 4424(b).

N.J. Admin. Code § 7:1E-8.4 Time for submission of substantiation

(a) The claimant shall submit substantiation within 30 days after the date of the claimant's receipt of the written notice provided under N.J.A.C. 7:1E-8.2(a)1.

(b) The Department may, in its discretion, extend the time allotted for submission of substantiation pursuant to (a) above if, before the expiration of the allotted time, the claimant submits a written request for the extension of such allotted time, provided, however, that except in extraordinary circumstances, the Department shall not approve such an extension of time in connection with a request to inspect or copy assertedly confidential information pursuant to N.J.S.A. 47:1A-1 et seq. without the consent of any person whose request to inspect or copy the allegedly confidential information under N.J.S.A. 47:1A-1 et seq. is pending.

(c) If a claimant fails to submit substantiation within the time allotted pursuant to this section, the claimant shall be deemed to have waived all confidentiality claims with respect to the information for which the substantiation was required.

N.J. Admin. Code § 7:1E-8.5 Final confidentiality determination

(a) If, after review of all the information submitted pursuant to N.J.A.C. 7:1E-8.2 and 8.3, the Department determines that the assertedly confidential information is not confidential information, the Department shall take the following actions:

1. The Department shall so notify the claimant by certified mail, return receipt requested. The notice shall state the basis for the determination, that it constitutes final agency action concerning the confidentiality claim, and that the Department shall make the information available to the public on the 14th day following receipt by the claimant of the written notice. The notice shall include a copy of the final public copy to be made available to the public.

2. On or after the 14th day following receipt by the claimant of the written notice required by (a)1 above, the Department shall send written notice of the determination to any requester with a pending request to inspect or copy the information which was the subject of the confidentiality claim. The Department shall send the notice by certified mail, return receipt requested.

(b) If, after review of the substantiation submitted pursuant to N.J.A.C. 7:1E-8.3, the Department determines that the assertedly confidential information is confidential information, the Department shall treat such information as confidential information in accordance with N.J.A.C. 7:1E-10. The Department shall send written notice of the determination to the claimant and to any requester with a pending request to inspect or copy the information which was the subject of the confidentiality claim. The notice shall state the basis for the determination and that it constitutes final agency action. The Department shall send the notice by certified mail, return receipt requested.

N.J. Admin. Code § 7:1E-8.6 Treatment of information pending confidentiality determination

The Department shall treat assertedly confidential information as confidential information, until the Department has made a final determination that the assertedly confidential information is not confidential information.

N.J. Admin. Code § 7:1E-8.7 Availability of information to the public after determination that information is not confidential

If the Department determines that assertedly confidential information is not confidential information pursuant to N.J.A.C. 7:1E-8.5(a), the Department may disclose such information to any person on the date which is 14 days after the claimant's receipt of the written notice of the confidentiality determination.

N.J. Admin. Code § 7:1E-8.8 Preparation of final public copy

After the Department makes a final confidentiality determination that a record contains confidential information, the Department shall prepare a final public copy of the record based upon the final confidentiality determination. The Department may disclose the final public copy to any person, without restriction or limitation.

N.J. Admin. Code § 7:1E-8.9 Reserved

(a) The Department may make a class confidentiality determination if the Department finds that the items of information within the class share one or more characteristics, which characteristics would cause the Department to determine consistently that such information is or is not confidential information.

(b) A class confidentiality determination shall clearly identify the class of information to which it applies. Such identification shall include a list of the common characteristics shared by all information within the class.

(c) A class confidentiality determination shall state that all of the information in the class is or is not confidential information.

History

• Reserved by 57 N.J.R. 1253(b), effective 6/16/2025

N.J. Admin. Code § 7:1E-8.10 Reserved

(a) Without limiting the ability of the Department to determine that information not listed in this section is not confidential information, the following types of information are not confidential information:

1. The name, address and business telephone number of the owner or operator of a transmission pipeline, or of the registered agent of such owner or operator;

2. The name, address and business telephone number of a facility and of its owner or operator and the registered agent of such owner or operator;

3. Schedules of integrity testing for aboveground storage tanks required to be submitted under N.J.A.C. 7:1E-2.2(a)4, and information concerning the methods of testing;

4. Test reports for aboveground storage tanks required to be submitted under N.J.A.C. 7:1E-2.2(a)5;

5. Information contained in documentation of employee training, evaluation and qualifying activities required to be maintained under N.J.A.C. 7:1E-2.12(d);

6. The storage capacity of a facility, the transfer capacity of a facility, and the types of hazardous substances present at a facility;

7. Discharge cleanup information required to be submitted under N.J.A.C. 7:1E-3.4;

8. Lists of standard operating procedures required to be submitted under N.J.A.C. 7:1E-4.2(c)14;

9. Information concerning procedures for mobilizing equipment in the event of a discharge;

10. Names and titles of response coordinators and other persons authorized to hire contractors and release funds for discharge response, containment, cleanup and removal;

11. Information concerning proposed methods of disposal of material gathered during cleanups;

12. Housekeeping and maintenance records required to be made available under N.J.A.C. 7:1E-4.2(f)6;

13. The locations of environmentally sensitive areas;

14. Certifications required under N.J.A.C. 7:1E-4.11, and the identity of any person signing such a certification;

15. Information which the Department is required to report under N.J.A.C. 7:1E-5.9; and

16. Information contained in an administrative order or notice of civil administrative penalty assessment under N.J.A.C. 7:1E-6.3.

History

• Amended by R.1996 d.462, effective 10/7/1996.
• See: 28 N.J.R. 2730(a), 28 N.J.R. 4424(b).
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

Subchapter 9 DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION

N.J. Admin. Code § 7:1E-9.1 Disclosure of confidential information to other public agencies

(a) The Department may disclose confidential information to any other state agency or to a Federal agency if:

1. The Department receives a written request for disclosure of the information from a duly authorized officer or employee of the requesting agency;

2. The Department notifies the other agency of any pending confidentiality claim concerning the requested information, or of any confidentiality determination regarding the requested information;

3. The other agency has furnished to the Department a written opinion from the agency's chief legal officer or counsel stating that under applicable law the agency has the authority to compel the person who submitted the information to the Department (or allowed the Department to obtain such information) to disclose such information to the requesting agency;

4. The other agency has adopted regulations or operates under statutory authority that will allow it to preserve confidential information from unauthorized disclosure, and agrees in writing to refrain from disclosure and to safeguard the information in accordance with the requirements of N.J.A.C. 7:1E-10.1 and 10.2, unless:

i. The requesting agency has statutory authority both to compel production of the information and to disclose it; or

ii. The claimant has consented to disclosure of the information by the requesting agency; and

5. The requesting agency agrees not to disclose the information further unless:

i. The requesting agency has statutory authority both to compel production of the information and to make the proposed disclosure; or

ii. The claimant has consented to disclosure of the information by the requesting agency.

N.J. Admin. Code § 7:1E-9.2 Disclosure of confidential information to contractors

(a) The Department may disclose confidential information to a contractor, if it complies with the procedure established under (b) below, and if:

1. The Department determines that such disclosure is necessary in order for the contractor to perform the work required by the contract;

2. The contract provides that the contractor and the contractor's employees shall use the confidential information only for the purpose of performing the duties required by the contract, shall refrain from disclosing the confidential information to anyone other than the Department, shall store all records containing the confidential information in locked cabinets in secure rooms, and shall return to the Department all originals and all copies of the information (and any abstracts or extracts therefrom, or any records containing any of the confidential information) when the confidential information is no longer necessary to enable the contractor to perform obligations under the contract, or at any time upon the request of the Department; and

3. If the claimant so requests, the contractor contracts with the claimant to refrain from further disclosure of the confidential information.

(b) Before disclosing confidential information to a contractor under (a) above, the Department shall notify the claimant of the proposed disclosure in writing, delivered by certified mail, return receipt requested, at least 14 days before making the disclosure. The notice shall state the information to be provided, the identity of the contractor, and the scheduled date of disclosure. If, at least three working days before the scheduled date of disclosure, the claimant delivers to the Department information sufficient to establish that the proposed disclosure would be likely to cause more than nominal damage either to the claimant's competitive position or to national security, the Department shall refrain from making the disclosure.

N.J. Admin. Code § 7:1E-9.3 Disclosure to alleviate an imminent and substantial danger

(a) If the Department finds that disclosure of confidential information would serve to alleviate an imminent and substantial danger to public health, safety or the environment, the Department may, in its discretion, take one or more of the following actions:

1. Reduce the time allotted for providing substantiation pursuant to N.J.A.C. 7:1E-8.4, and notify the claimant of such reduction;

2. Advance the date on which the Department may disclose information which the Department has determined is not confidential information, pursuant to N.J.A.C. 7:1E-8.5(a), and notify the claimant of such advance; or

3. Immediately disclose the confidential information to any person whose role in alleviating the danger to public health and the environment makes such disclosure necessary. Any disclosure pursuant to this paragraph shall be limited to information necessary to enable the person to whom it is disclosed to carry out the activities in alleviating the danger. Any disclosure made pursuant to this paragraph shall not be deemed a waiver of a confidentiality claim and shall not be grounds for any determination that information is no longer confidential information.

N.J. Admin. Code § 7:1E-9.4 Notice to claimants of disclosure of confidential information

(a) Promptly after the Department discloses confidential information pursuant to N.J.A.C. 7:1E-9.1, 9.2 or 9.3, the Department shall notify any claimant from whom the Department has obtained confidential information of the disclosure. Such notice shall be in writing, and shall contain the following information:

1. The date on which disclosure was made;

2. The name of the agency or other person to which the Department disclosed the confidential information; and

3. A description of the confidential information disclosed.

N.J. Admin. Code § 7:1E-9.5 Disclosure by consent

(a) The Department may disclose confidential information in accordance with the written consent of the claimant.

(b) A claimant's consent to a particular disclosure shall not operate as a waiver of a confidentiality claim with regard to further disclosures, unless the authorized disclosure is of such nature that the disclosed information is no longer confidential information.

N.J. Admin. Code § 7:1E-9.6 Incorporation of confidential information into cumulations of data

Nothing in this chapter shall be construed as prohibiting the incorporation of confidential information into cumulations of data subject to disclosure as public records, provided that after consultation with the claimant, the Department has determined that such disclosure is not in a form that would foreseeably allow persons, not otherwise having knowledge of such confidential information, to deduce from it the confidential information or the identity of the person who supplied it to the Department.

N.J. Admin. Code § 7:1E-9.7 Disclosure of confidential information in rulemaking, permitting, and enforcement proceedings

(a) Notwithstanding any other provision of this subchapter, the Department may disclose confidential information in rulemaking, permitting and enforcement proceedings.

(b) The following procedures shall apply to the disclosure of confidential information by the Department in rulemaking, permitting and enforcement proceedings:

The Department may disclose confidential information in an adjudicatory hearing, subject to the protection from making the information available to the public which the administrative law judge may impose under the Uniform Administrative Procedure Rules, N.J.A.C. 1:1 including without limitation N.J.A.C. 1:1-14.1.

2. The Department may disclose confidential information in any enforcement, permitting, or rulemaking proceeding which does not involve an adjudicatory hearing, pursuant to the following procedure:

i. The Department shall inform the claimant that the Department is considering using the information in connection with the proceeding and shall afford the claimant a reasonable period for comment;

ii. The claimant shall submit comments to the Department within the time allotted pursuant to (b)2i above, concerning the proposed uses of confidential information, including comments which may support a determination that the confidential information is not relevant to the proceeding, or that the disclosure of the confidential information in the proceeding is not necessary to serve the public interest;

iii. The Department may disclose the confidential information in the proceeding if, upon consideration of comments submitted pursuant to (b)2ii above, the Department determines that the information is relevant to the subject of the proceeding, that the use of the information in the proceeding will serve the public interest, and that it materially impairs such service of the public interest to limit the use of the information to a manner which preserves its confidentiality; and

iv. The Department shall give the affected person at least five days notice prior to using the information in the proceeding in a manner which may result in the information being made available to the public.

N.J. Admin. Code § 7:1E-9.8 Hearing before disclosure of information for which a confidentiality claim has been made

(a) A claimant may request an adjudicatory hearing to contest disclosure of any information for which a confidentiality claim has been made, at any time before disclosure. The request shall be in accordance with the requirements at N.J.A.C. 7:1E-6.4(b), and shall be delivered to the Department at the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

(b) The Department may deny a request for an adjudicatory hearing under (a) above if:

1. The claimant fails to provide all information required under N.J.A.C. 7:1E-6.4(b);

2. The Department receives the request after disclosure of the assertedly confidential information occurs;

3. The Department has been ordered to disclose the information by a court of competent jurisdiction, or by any other person or entity with the power and authority to compel disclosure; or

4. The Department determines that disclosure is necessary to alleviate an imminent danger to the environment or to public health or safety, as provided in N.J.A.C. 7:1E-9.3.

(c) All adjudicatory hearings shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(d) At the adjudicatory hearing, the respondent shall have the burden of showing that the proposed disclosure is not in accordance with this chapter.

(e) Pending the completion of the adjudicatory hearing, the Department will refrain from disclosing the assertedly confidential information, unless:

1. The Department has been ordered to disclose the information by a court of competent jurisdiction, or by any other person or entity with the power and authority to compel disclosure; or

2. The Department determines that disclosure is necessary to alleviate an imminent danger to the environment or to public health or safety.

History

• Amended by R.2000 d.352, effective 8/21/2000.
• See: 31 N.J.R. 3561(a), 32 N.J.R. 3091(a).
• Recodified (d) through (f) as (c) through (e).
• Administrative correction and change.
• See: 46 N.J.R. 438(a).

Subchapter 10 TREATMENT OF CONFIDENTIAL INFORMATION

N.J. Admin. Code § 7:1E-10.1 Nondisclosure of confidential information

Unless specifically required by any Federal or State law, regulation or order, court order, or applicable court rule, the Department shall not disclose confidential information to any person other than as provided in N.J.A.C. 7:1E-9.

N.J. Admin. Code § 7:1E-10.2 Safeguarding of confidential information

(a) Submissions to the Department required under this chapter will be opened only by persons authorized by the Department to be engaged in administering this chapter.

(b) Only those Department employees whose activities necessitate access to information for which a confidentiality claim has been made may open any envelope which is marked "CONFIDENTIAL".

(c) The Department shall store any records containing confidential information only in locked cabinets in secure rooms; provided, however, that if such records are in a form which is not amenable to such storage, the Department shall store such records in a manner which similarly restricts access by persons to whom disclosure of the confidential information in question is restricted.

(d) Any records made, possessed, or controlled by the Department or its contractors, and containing confidential information, shall contain indicators identifying the confidential information.

(e) Every Department employee, representative, and contractor who has custody or possession of confidential information shall take appropriate measures to safeguard such information and to protect against its improper disclosure.

N.J. Admin. Code § 7:1E-10.3 Confidentiality agreements

The provisions of this chapter shall supersede the provisions of any agreement imposing any duties of confidentiality or nondisclosure upon the Department or any employee, contractor or agent thereof. Such provisions imposing confidentiality or nondisclosure duties upon the Department of any employee, contractor or agent thereof shall be of no force or effect.

N.J. Admin. Code § 7:1E-10.4 Wrongful access or disclosure; penalties

(a) No person shall disclose, obtain or have possession of any confidential information, except as authorized by this chapter.

(b) Except in accordance with this chapter, no Department employee, representative, or contractor shall disclose any confidential information which came into his or her possession, or to which he or she gained access, by virtue of his or her official position of employment or contractual relationship with the Department. No such person shall use any such information for his or her private gain or advantage, except as permitted by a contract between such person and the Department. If a contractor discloses confidential information in violation of this chapter or of contractual provisions restricting disclosure, such disclosure shall constitute grounds for debarment or suspension as provided in N.J.A.C. 7:1D-2, Debarment, Suspension and Disqualification from Department Contracting.

(c) If the Department finds that any person has violated the provisions of this subchapter, it may:

1. Commence civil action in Superior Court for a restraining order and an injunction barring that person from further disclosing confidential information; and/or

2. Pursue any other remedy available at law or equity.

(d) In addition to any other penalty that may be sought by the Department, violation of this subchapter by a Department employee shall constitute grounds for dismissal, suspension, fine or other adverse personnel action.

(e) Use of any of the remedies specified under this section shall not preclude the use of any other remedy.

History

• Administrative change.
• See: 32 New Jersey Register 1796(a).

Chapter 1F UNDERGROUND STORAGE CAVERNS

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1F-1.1 Scope

This chapter shall constitute the rules of the Department for the construction, operation, modification, and decommissioning of any underground storage cavern system in the State.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.2 Construction

This chapter, being necessary to promote the public health, safety, welfare, and environment, shall be liberally construed to permit the Department to implement its statutory functions and to effectuate the purposes of N.J.S.A. 58:10-35.1 et seq.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.3 Purpose

(a) This chapter is promulgated for the following purposes:

1. To establish the Department's underground storage cavern program to ensure that all underground storage cavern systems are constructed, operated, modified, and decommissioned in a manner that will preserve the integrity of the underground storage cavern system, and minimize any potential threat to public health, safety, and the environment, including preventing the pollution, contamination, diversion, or depletion of subsurface and percolating waters, air, and other environmental media; and

2. To implement the technical and permitting requirements of the Act.

(b) Any permit issued pursuant to this chapter does not in any way relieve the applicant from the obligation to obtain necessary permits from other governmental agencies and to comply with all other applicable Federal, State, and local rules and regulations.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.4 Applicability

(a) This chapter applies to the construction, operation, modification, and decommissioning of underground storage cavern systems.

(b) The owner and operator of an underground storage cavern system shall ensure that any underground storage cavern system is constructed, operated, modified, and decommissioned, in accordance with the requirements of this chapter.

(c) No underground storage cavern system subject to the requirements of this chapter shall be constructed without approval, or operated without a permit, from the Department issued pursuant to N.J.A.C. 7:1F-4, modified without an approval pursuant to N.J.A.C. 7:1F-5, or decommissioned without an approval pursuant to N.J.A.C. 7:1F-6.

(d) A permit issued by the Department pursuant to N.J.A.C. 7:1F-4 shall only apply to a single regulated substance, as specified by the owner and operator in its permit application. LPG shall be considered a single regulated substance.

(e) The storage of liquefied natural gas in an underground storage cavern system is not permitted pursuant to this chapter.

(f) Each owner and each operator is fully responsible for compliance with the requirements of this chapter and with the permit and permit conditions, including adequate design, construction, and operation of the system, even if employees, contractors, or others work on or operate the permitted system.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.5 Severability

If any section, subsection, provision, clause, or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter shall not be affected thereby.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.6 Definitions

As used in this chapter, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

"Abandoned well" has the same meaning as the term "abandoned well" as defined in the Well Construction and Maintenance rules at N.J.A.C. 7:9D-1.5.

"Act" means N.J.S.A. 58:10-35.1 et seq.

"Borehole" means a hole made by driving, jetting, coring, drilling, use of an auger, or other means into the ground for the purpose of constructing a shaft or well pursuant to this chapter.

"Casing" means a pipe or tubing installed into a borehole during or after drilling to support the sides of the hole and prevent caving or the entrance of water, gas, or other fluid into the hole.

"Checklist" means a systematic study of updated engineering design drawings that describe the cavern system, taking into consideration process chemistry, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The study uses a written list of items to verify the status of a cavern system. Checklists are created by organizing information from current relevant codes, standards, regulations, and good engineering practice documents. The checklist is completed with "yes," "no," "not applicable," or "needs more information" answers to the questions. Results of the study are reported on a table as follows: each checklist item and its corresponding consequence/hazard, the criticality based on the quantity or rate of the potential release, existing safeguards in place, and the recommended action in terms of equipment or procedure to mitigate the consequence/hazard.

"Construction" means the drilling, boring, driving, digging, or otherwise conducting of any operation for the purpose of obtaining access to a pocket or other underground area to establish a new underground storage cavern as part of an underground storage cavern system, in addition to, installing the infrastructure needed to operate the system.

"Corrosion control" means the prevention of the deterioration of any component of an underground storage cavern system by direct or electrochemical reaction with its environment.

"Decommission" means the complete withdrawal of any regulated substance, to the greatest feasible extent, from an underground storage cavern system, the sealing and/or removal of the system's ancillary equipment, and the cessation of operation at the underground storage cavern system.

"Department" means the Department of Environmental Protection.

"Dormancy" means a period during which a permitted regulated substance is withdrawn and an underground storage cavern system is temporarily empty with the intent to inject and store the permitted regulated substance in the future.

"Environmental and Health Impact Statement" or "EHIS" means a statement as to the realistically identifiable, probable impact of the underground storage cavern system upon the geology, soils, hydrology, air quality, ecology, land use, socioeconomic factors, aesthetics, history, and archeology of the site upon which construction of the system is contemplated; a listing of adverse environmental impacts that cannot be avoided; a description of the steps to be taken to minimize adverse environmental impacts during construction and operation of the system, both at the project site and in the surrounding region; and a reference list of pertinent published information relating to the project, the project site, and the surrounding region.

"Environmental assessment" means an evaluation of the positive and negative changes to the environmental conditions at and around a particular site that may result from the implementation of a proposed action. Included in an "environmental assessment" is a determination of the magnitude of the potential changes and, where applicable, the identification of recommended mitigative measures to be incorporated.

"Environmental inventory" means a detailed and comprehensive description of the condition of all environmental parameters, prescribed at N.J.A.C. 7:1F-2.4(b), as they exist at and around the site of a proposed action prior to implementation of the proposed action. This description is used as a baseline for assessing the environmental impacts of a proposed action.

"Facility" means one or more underground storage cavern system(s) owned or operated by one person on a single property site or on contiguous property sites.

"Failure Mode and Effects Analysis" or "FMEA" means a specifically designed method to identify the conceivable ways that equipment, or its components, can fail and the effect of the failure on the cavern system with respect to a release of the regulated substance. The failure and effects are determined in a study of updated engineering design drawings that describe the cavern system taking into consideration chemistry, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The resulting qualitative analysis are translated into a quantitative FMEA in which probabilities of the failure of components are assigned. The results of the FMEA for each equipment or component of the system are reported for the cavern system on an FMEA table for each equipment item or component studied as follows: the identification number of the item, the name of the item, entries of failure modes of the item, and for each entry of failure mode, the other equipment potentially affected with the equipment identification number and the effect of the failure on that equipment, a classification of the criticality ranking of the failure based on quantity or rate of the potential release, the probability of the failure and the suggested action in terms of equipment or procedure to prevent the failure or to mitigate the results of the failure.

"Fault Tree Analysis" or "FTA" means an analysis of the logic diagram constructed from a study of the updated engineering design drawings describing the system taking into consideration chemistry of the regulated substance, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The logic diagram contains the conceivable human or mechanical event sequences that could result in a release. The logic diagram represents a qualitative analysis of the hazards. Results of the FTA are reported for the cavern system on a table that includes the descriptions of the various combinations of equipment or procedural failures that can lead to a release of the regulated substance. The combinations are determined by solving the fault tree logic diagram to identify the minimal cut sets, that is, the smallest combination of equipment or procedural failures, which, if all occur, will result in the "top event," or the substance release. The table includes a criticality ranking based on the quantity or rate of the potential substance release, a probability for the respective failures, and the suggested action in terms of equipment or procedure to prevent the failure or to mitigate the results of the failure. Probabilities are assigned to each element of the event sequence to obtain a quantitative fault tree that gives the probability or frequency of occurrence of the release.

"Feasibility study" means a study conducted to assess the suitability of a site for the construction and operation of an underground storage cavern system based upon the site's geology, hydrogeology, above- and below-ground formations or structures, and the regulated substance to be stored at the system.

"Financial responsibility assurance" means the assurance, through one or more allowable mechanisms pursuant to N.J.A.C. 7:1F-6.2, of the availability of funds necessary for the decommissioning, maintenance, and monitoring of the underground storage cavern system.

"First emergency shutdown valve" or "First ESV" means the first actuated valve located on any penetration shaft that is used to inject into, or withdraw the regulated substance from, a cavern, where that valve is located downstream from the wellhead and prevents an uncontrolled release.

"Hazard and Operability Study" or "HAZOP" means a systematic study of updated engineering design drawings that describe the cavern system taking into consideration process chemistry, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The study is performed by a multi-disciplinary team to identify hazard or operability problems that would result in an accident. Deviations from the design value of key parameters (flow, temperature, composition, time, quantity, etc.) of each segment of the covered process and its procedures are studied using guide words (such as, more of, less of, none of, part of, more than, and other) to control the examination and evaluation. Results of the HAZOP study are reported by tabulation for a unit by key equipment and process parameters. The results are entered on the table as follows: guide word, causes of the deviation, consequences of the deviation in terms of a potential substance release, the criticality based on the quantity or rate of potential release, and the suggested action in terms of equipment or procedure to mitigate the deviation.

"Liquefied natural gas" or "LNG" means methane with small amounts of hydrocarbons, water, carbon dioxide, nitrogen, oxygen, and some sulfur compounds that have been cooled to minus 259 degrees Fahrenheit and is in a liquid state.

"Liquefied petroleum gas" or "LPG" means any material in liquid form that is composed predominantly of any of the following hydrocarbons or a mixture thereof: propane, propylene, butanes (normal butane or isobutane), and butylenes.

"Major modification" means a change to the regulated substance, or a change to the underground storage cavern system that affects the maximum and/or minimum operating temperatures and/or pressures.

"Maximum allowable operating pressure" or "MAOP" means the maximum pressure of the regulated substance at which an underground storage cavern system is capable of maintaining its mechanical integrity. The maximum allowable operating pressure of any system is the test pressure minus the safety margin.

"Maximum design pressure" or "MDP" means the highest pressure at which a pressure test of the cavern may be conducted to verify the integrity of the cavern system. The MDP is the minimum calculated hydrostatic pressure at the highest point of the cavern, in pounds per square inch gauge (psig), minus 29 psig.

"Maximum design temperature" means the maximum temperature of the regulated substance at which an underground storage cavern system is capable of maintaining its mechanical integrity.

"Maximum operating pressure" means the maximum pressure of the regulated substance that is expected during operation. The maximum operating pressure must be less than the MAOP.

"Maximum operating temperature" means the maximum temperature of the regulated substance that is expected during operation.

"Mechanical integrity" means the structural stability of an underground storage cavern system under maximum allowable operating pressure based on the geological characteristics of the cavern, the equipment specifications of any storage well, wellhead, pipe, line, tube, and instrumentation up to, and including, the first emergency shutdown valve at the system, and the properties of the regulated substance stored in the cavern.

"Mechanical integrity test" means the procedure by which the selected test pressure is used to determine if a system is capable of storing a regulated substance under the system's maximum allowable operating pressure without compromising the system's structural stability.

"Minimum design pressure" means the minimum pressure of the regulated substance at which an underground storage cavern system is capable of maintaining its mechanical integrity.

"Minimum design temperature" means the minimum temperature of the regulated substance at which an underground storage cavern system is capable of maintaining its mechanical integrity.

"Minimum operating pressure" means the minimum pressure of the regulated substance that is expected during operation.

"Minimum operating temperature" means the minimum temperature of the regulated substance that is expected during operation.

"Minor modification" means any change to the design or construction of an underground storage cavern system or change in the method of operation of the system that affects storage, injection, or withdrawal activities that is not a major modification.

"Modify" or "modification" means any change to the design or construction of an underground storage cavern system or change in the method of operation of the system that affects storage, injection, or withdrawal activities. A modification does not include repairs or maintenance.

"Monitoring well" means a borehole used to observe the elevation of the water table or potentiometric surface, or to measure water quality.

"Natural or artificial gas" or "gas" means any substance, whether naturally occurring or synthetic, that exists in a gaseous state at standard temperature and pressure, or 32 degrees Fahrenheit and atmospheric pressure.

"Operation" or "operate" means any ongoing injection, withdrawal, or storage at an underground storage cavern system.

"Operator" means any person who leases, operates, controls, supervises, or has responsibility for, the daily operation of an underground storage cavern system, and each person who has the authority to operate, control, or supervise the daily operation of a system. There may be more than one operator of a system.

"Owner" means any person who owns a facility, or any person who has a legal or equitable title to a site containing a facility.

"Permit" means the approval issued by the Department pursuant to N.J.A.C. 7:1F-4 to construct and operate an underground storage cavern system.

"Person" means any individual or entity, including, without limitation, a public or private corporation, company, estate, association, society, business firm, partnership, joint stock company, foreign individual or entity, interstate agency, or authority, the United States and any of its political subdivisions, the State of New Jersey, or any of its political subdivisions, or any other meanings that apply to the common understanding of the term. "Person" shall, for the purpose of enforcement, also include a responsible corporate official, including a managing member of a limited liability company or a general partner of a partnership.

"Petroleum product and its derivative" means any substance that is a complex mixture, whether natural or synthetic, of different hydrocarbons with small amounts of other substances, such as compounds of oxygen, sulfur, or nitrogen, or metallic compounds, or any of the products obtained by refining processes, such as fractional distillation, cracking, catalytic reforming, alkylation, or polymerization. This term includes, but is not limited to, methane, ethane, propane, butane, gasoline, kerosene, fuel oil, synthetic oil, crude oil, and liquified petroleum gas or LPG. For purposes of this chapter, this definition does not include liquefied natural gas.

"Process hazard analysis" means a systematic study of engineering and design drawings and documents, standard operating procedures, and maintenance procedures conducted by an owner and operator to analyze and determine potential release scenarios, incorporated safeguards, and additional recommended risk reduction measures.

"Regulated substance" or "substance" means a gas or a petroleum product and its derivative injected, withdrawn, stored, or proposed to be injected, withdrawn, or stored at an underground storage cavern system. For purposes of this chapter, this definition does not include liquefied natural gas.

"Release" means a discharge or emission of a regulated substance from an underground storage cavern system, excluding any discharge or emission occurring pursuant to, and in compliance with, any Department permit or regulation.

"Repair" or "maintain" means the upkeep of an underground storage cavern system, including the replacement of parts to ensure continued operation, in accordance with the design specifications of the system.

"Safety margin" means the pressure value that is equal to 10 pounds per square inch gauge (psig) or 10 percent of the test pressure, whichever is greater. The safety margin value is used to determine the maximum allowable operating pressure of an underground storage cavern system.

"Shaft" means any borehole used to access an underground storage cavern, including the excavation or the support of the excavation of the cavern. This term refers to any borehole used for the purposes of removing excavated materials, access for personnel and supplies, or ventilation.

"Site" means the contiguous piece of property at which a facility is located.

"Storage well" means the borehole that connects the underground storage cavern to the surface and is used to inject or withdraw a regulated substance.

"Surface footprint" means the area of land at a site that is located directly above an underground storage cavern.

"Test pressure" is the pressure value in pounds per square inch gauge (psig) selected to be used in a test to verify the integrity of the cavern system. The test pressure must be less than or equal to the maximum design pressure.

"Underground storage cavern" or "cavern" means a pocket or other underground area or place in any underground stratum excavated and used for the purpose of storing a regulated substance, or a natural geologic trap of any kind used for the purpose of storing a regulated substance.

"Underground storage cavern system" or "system" means an underground storage cavern and associated ancillary equipment including, but not limited to, wells, wellheads, pipes, lines, tubes, and instrumentation that are used for operation of the system up to and including the first emergency shutdown valve, any associated, adjacent maintenance valves, and the pressure relief valve(s) installed to protect the cavern from over pressurization.

"Well" means any abandoned, exploratory, monitoring, or storage well pursuant to this chapter, or any well that is regulated pursuant to the Well Construction and Maintenance rules at N.J.A.C. 7:9D.

"Wellhead protection area" means an aquifer area around a well, from within which ground water flows to the well and through which ground water pollution, if it occurs, may pose a significant threat to the water quality of the well. The wellhead protection area is delimited by the use of time-of-travel and hydrologic boundaries.

"What-If Analysis" means a systematic study of updated engineering design drawings that describe the cavern system taking into consideration process chemistry, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The study is a brainstorming approach in which team members familiar with the subject process ask questions or voice concerns about possible undesired events. The What-If Analysis identifies hazards, hazardous situations, or specific accident events that could produce an undesirable consequence. The concerns (often phrased in the form of "what if" questions) are formulated based on experience and applied to existing drawings and process descriptions for the cavern system. Results of the study are reported on a table as follows: the "what if" question and its corresponding consequence/hazard, the criticality based on the quantity or rate of the potential release, existing safeguards in place, and the recommended action in terms of equipment or procedure to mitigate the consequence/hazard.

"What-If/Checklist study" means a systematic study of updated engineering design drawings that describe the cavern system taking into consideration process chemistry, standard operating procedures, maintenance procedures, operator job descriptions, and other documents. The What-If/Checklist study is a combination of the What-If and Checklist methods which uses a written list of questions to verify the status of a cavern system that are created by organizing information from current relevant codes, standards, and regulations, and team members familiar with the subject process ask questions or voice concerns about possible undesired events. Results of the study are reported for the cavern system on a table as follows: each "What if/Checklist" item and/or question and its corresponding consequence and/or hazard, the criticality based on the quantity or rate of the potential release, and the recommended action in terms of equipment or procedure to mitigate the consequence/hazard.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.7 Municipal ordinances or regulations

Any ordinance or regulation of any governing body of a municipality or county or board of health shall not be superseded by this chapter, and nothing in this chapter shall preclude the right of any governing body of a municipality or county or board of health to adopt ordinances or regulations.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.8 Certification of information

(a) Any person who submits an application, report, or other document to the Department pursuant to the requirements in this chapter shall include the following certification or certifications:

1. A certification, signed by the person or persons, including, but not limited to, any consultants, licensed engineers, or contractors, with direct knowledge of, and responsibility for, the information contained in the certified document. The certification shall state:

"I certify under penalty of law that I believe the information provided in this document is true, accurate, and complete."

2. A certification signed by a responsible corporate official that states:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and any of its attachments and, based on my inquiry of those persons immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete."

(b) The certification at (a)2 above shall not be required if the person required to sign the certification at (a)1 above is the same person required to sign the certification at (a)2 above.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.9 Fees

(a) Fees for underground storage cavern permits, compliance monitoring, modification, and decommissioning shall be paid to the Department by the owner or operator of an underground storage cavern, in accordance with this section.

(b) Fees shall be paid in U.S. dollars through the Department's online payment system or by certified check, check, or money order, payable to "Treasurer, State of New Jersey," and mailed along with the fee invoice on or before the indicated due date, to the following address:

Department of Treasury

Division of Revenue

PO Box 417 Trenton, NJ 08646-0417

(c) The Department shall charge a reasonable fee for services performed in connection with underground storage cavern permitting, compliance monitoring, modification, and decommissioning. The fee to be charged by the Department shall be based on actual hours worked, multiplied by an hourly rate of $ 140.00. For each State fiscal year after State fiscal year 2022, the hourly rate shall be adjusted pursuant to (i) below.

1. The Department shall compute the hourly rate as follows:

Hourly Rate = (AS+FB+IC+OE)/BH

Where:

AS = The average annual salary of the Direct Program staff assigned.

FB = The average fringe benefits for an employee calculated as a percentage of the average salary. The New Jersey Department of the Treasury sets the percentage annually, based on costs associated with pensions, health benefits, workers compensation, disability benefits, unused sick leave, and the employer's share of the Federal Income Compensation Act (FICA) contribution.

IC = The indirect costs, calculated at a rate negotiated annually between the Department and the United States Environmental Protection Agency. Indirect costs are those costs incurred for a common or joint purpose, benefiting more than one objective and not readily assignable to the cost objective specifically benefited without effort disproportionate to the result achieved. Indirect costs consist of Department management salaries and operating expenses, divisional indirect salaries and related expenses (personnel, fiscal, and general support staff), building rent, and the Department allocation of indirect costs listed in the Statewide Allocation Plan prepared annually by the State Department of the Treasury. Indirect costs do not include the salaries for Department overhead staff or direct support personnel. To calculate the IC, the current negotiated rate is multiplied by the sum of AS and FB.

OE = The average operational expenses attributable to an employee. Operating expenses include costs incurred in connection with the program for such items as postage, telephone, training, travel, supplies, equipment maintenance, vehicle maintenance, and data system management (internal systems, such as the New Jersey Environmental Management System (NJEMS) and external mainframe applications through the Office of Information Technology).

BH = The billable hours, which is the average number of hours each direct program staff position spends annually performing activities for which fees are assessed. This number is determined by starting with the total number of days in the calendar year, 365. Then weekends and holidays are subtracted. This figure is further reduced by subtracting days for the average amount of used employee leave time (vacation, sick, and administrative leave days). Finally, the figure is adjusted by subtracting days for training and other non-billable staff time (such as medical surveillance, time sheet preparation, staff meetings, and other general functions). This results in 204 working days annually that can be allocated to specific objectives. 204 days multiplied by seven hours per workday equals 1,428 billable hours.

(d) The fee(s) charged for underground storage cavern permitting shall not exceed the maximum amounts listed below for State fiscal year 2022. For each State fiscal year after State fiscal year 2022, the maximum fee(s) shall be adjusted pursuant to (i) below.

1. Administrative review and processing of application and supporting documents for construction approval, pursuant to N.J.A.C. 7:1F-4.2(c): $ 16,500.

2. Technical review and processing of application and supporting documents for construction approval, pursuant to N.J.A.C. 7:1F-4.2(d): $ 98,600.

3. Administrative review and processing of documents submitted for a permit to operate the underground storage cavern, pursuant to N.J.A.C. 7:1F-4.2(i): $ 16,500.

4. Technical review and processing of documents submitted for a permit to operate the underground storage cavern, pursuant to N.J.A.C. 7:1F-4.2(j): $ 49,300.

5. Permit renewal submitted, pursuant to N.J.A.C. 7:1F-4.6(b):

i. Administrative review and processing of the application and supporting documents: $ 16,500.

ii. Technical review and processing of the application and supporting documents: $ 49,300.

6. Minor modification approval:

i. Administrative review and processing of the application and supporting documents, pursuant to N.J.A.C. 7:1F-5.1(c): $ 16,500.

ii. Technical review and processing of the application and supporting documents, pursuant to N.J.A.C. 7:1F-5.1(d): $ 49,300.

7. Major modification approval:

i. Administrative review and processing of the application and supporting documents, pursuant to N.J.A.C. 7:1F-5.2(b): $ 16,500.

ii. Technical review and processing of the application and supporting documents, pursuant to N.J.A.C. 7:1F-5.2(c): $ 98,600.

8. Technical review and processing of the application and supporting documents of a dormancy plan approval, pursuant to N.J.A.C. 7:1F-5.3(b): $ 16,500.

(e) For a cavern system not regulated by the Toxic Catastrophe Prevention Act Program, N.J.A.C. 7:31, the owner and operator shall be assessed fees as provided at (f) below for inspections, compliance reviews, review of quarterly monitoring reports pursuant to N.J.A.C. 7:1F-3.3, and review of dormancy plans, pursuant to N.J.A.C. 7:1F-5.3.

(f) The Department shall calculate fees, as follows:

1. Calculate task hours by determining the number of hours (determined from time coding or workload analysis) required of direct program staff.

2. Multiply the hourly rate derived at (c)1 above by the task hours calculated at (f)1 above.

(g) Fees will be calculated during the review process and assessed per activity. A fee shall not be prorated or refunded. The Department will bill the applicant prior to issuing the written determination to the cavern owner and operator on the outcome of the review activity. Payment will be required within 30 days of the billing date.

(h) Confidentiality claims substantiation. Any person submitting information to the Department and asserting a confidentiality claim, in accordance with the procedures set forth at N.J.A.C. 7:1F-8 shall pay a fee of $ 750.00.

1. The confidentiality claim substantiation fee shall be adjusted by the Consumer Price Index for each year after 2022. The Consumer Price Index used to adjust the confidentiality claim substantiation fee shall be the Annual Average Consumer Price Index for Urban Consumers (CPI-U) for the U.S. City Average, 1982-84=100, not seasonally adjusted, as published annually by the United States Department of Labor, Bureau of Labor Statistics (http://www.bls.gov/). The adjusted confidentiality claim substantiation fee shall be calculated by multiplying $ 750.00 by the CPI-U for the year of the confidentiality claim substantiation submission divided by the CPI-U for the year 2022.

2. If the CPI-U for the year of the confidentiality claim substantiation submission percentage change is less than the CPI-U for 2022, the fee shall remain unchanged.

3. The fee shall be rounded down to the nearest dollar.

(i) The monetary amounts established at (c) and (d) above shall be adjusted annually using current values for average annual salary, average fringe benefits, indirect costs, and average operational expenses. The adjusted fees shall be reflected through a notice of administrative change, published in the New Jersey Register.

(j) The Department may refrain from commencing work on reviews of underground storage cavern permits or approvals until it receives full payment of any outstanding fee(s) for prior review(s). If the Department has commenced work on a subsequent review, the Department may suspend such work until it receives full payment of the outstanding fee(s).

(k) Any fee under this subchapter that is subject to N.J.A.C. 7:1L shall be payable in installments, in accordance with N.J.A.C. 7:1L.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-1.10 Program information

(a) Unless otherwise specified, forms, checklists, and other information related to this chapter can be requested from the Bureau of Release Prevention at the address at (b) below, by telephone at (609) 633-0610, by fax at (609) 633-7031, by email at release_prevention@dep.nj.gov, or obtained through the Bureau's website at http://www.nj.gov/dep/enforcement/brp.htm. Further information about the Department can be accessed at www.nj.gov/dep/.

(b) Applications, forms, and correspondence related to this chapter must be submitted to the New Jersey Department of Environmental Protection, Bureau of Release Prevention, Mail Code 22-03D, 401 East State Street, PO Box 420, Trenton, New Jersey, 08625-0420, or by email at release_prevention@dep.nj.gov.

(c) Applications, forms, or other materials sent or delivered to the Department at an address other than as listed at (b) above shall not be deemed to have been received for the purposes of calculating application review deadlines or other time periods pursuant to this chapter.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 2 CONSTRUCTION OF AN UNDERGROUND STORAGE CAVERN

N.J. Admin. Code § 7:1F-2.1 Feasibility study

(a) Prior to construction of any underground storage cavern system and as part of any application for approval to construct pursuant to N.J.A.C. 7:1F-4, the owner and operator shall conduct and submit to the Department a feasibility study that includes the following information:

1. The approximate location, capacity, dimensions, and depth of the proposed underground storage cavern;

2. The locations of any shaft or well drilled or proposed to be drilled;

3. An assessment of the geographical, topographical, and physical data for the site of the underground storage cavern system, including the regional and site-specific geologic and hydrogeologic settings of the system, and the observed fluctuations of the local ground water levels;

4. Identification of the regulated substance to be stored including, if applicable, all mixtures and/or grades of LPG to be stored and the concentration of any component of the regulated substance, including of all LPG mixtures and/or grades to be stored;

5. An assessment of the compatibility of the regulated substance, including all proposed mixtures and/or grades of LPG included in the application, with all parts of the system and a demonstration that the mechanical integrity of the system will not be impaired;

6. An assessment of all available sources of information to demonstrate that any well, including any abandoned well, at the proposed site:

i. Has been constructed in accordance with all applicable local, State, and Federal laws; and

ii. All known abandoned wells have been properly decommissioned in accordance with the requirements at N.J.A.C. 7:9D, the Well Construction and Maintenance rules;

7. An assessment of any existing surface infrastructure or activity at the proposed site and its effect, if any, on the system's mechanical integrity; and

8. An assessment of all applicable local, State, and Federal laws including, but not limited to, Department rules that are applicable to the project.

(b) The feasibility study shall be completed by a person experienced with the design and construction of an underground cavern system and mechanical integrity.

(c) The feasibility study shall be certified by a licensed professional engineer.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-2.2 Design and construction

(a) Prior to construction of any underground storage cavern system and as part of any application for an approval to construct pursuant to N.J.A.C. 7:1F-4, the owner and operator shall submit, to the Department, design specifications and construction plans for the system, including:

1. A paper copy, together with a digital version as specified at (b) below, of an accurate map to scale showing the location, dimensions, and depth of any proposed underground storage cavern and of all shafts and wells drilled or proposed to be drilled;

2. Any engineering design drawing(s) of the system;

3. Any construction and engineering calculations associated with the underground storage cavern system, including any supporting documentation;

4. The specifications of the equipment and material to be installed or otherwise used during construction;

5. A description of the methods of construction to be utilized, including, but not limited to, methods of excavation and shaft construction and grouting;

6. The maximum allowable operating pressure, maximum and minimum design pressures, and maximum and minimum design temperatures of the system;

7. The maximum and minimum operating pressures and temperatures of the system, based on the regulated substance;

8. The codes and standards upon which the design specifications are based;

9. Corrosion control measures; and

10. A dust management plan that sets forth measures to control particulate dust from construction activities and sources that include, but are not limited to, muck piles, loading and haulage, material transfer points, crushers, face drilling, blasting, roof bolting, skip loading, dumping, surface work areas, and roadways.

(b) The map specified at (a)1 above must meet the following requirements:

1. The map must be prepared in a digital environment that is compatible with the Department's Geographic Information System. Compatible digital formats include AutoCAD and Arc GIS;

2. The map must be projected in New Jersey State Plane feet (North American Datum 1983); and

3. The map must contain a legend block stating the name and affiliation of the preparer of the map, the preparer's signature and seal, the name and location of the facility, the scale or scales employed, the sources of the data used, and the date of preparation of the map.

(c) The owner and operator of the system shall comply with the following construction requirements:

1. Construction of the system and storage of materials related to construction, including any excavated materials, must be completed in accordance with the Mine Safety Act, N.J.S.A. 34:6-98.1 et seq., the Radiation Protection Act, N.J.S.A. 26:2D-1 et seq., and the Explosives Act, N.J.S.A. 21:1A-128 et seq., as applicable, and all other applicable local, State, and Federal laws.

2. A system must be constructed in adherence with the design specifications submitted to the Department pursuant to (a) above. If during construction, the owner or operator deviates from the Department-approved design specifications, the owner and operator shall notify the Department, in writing, and provide updated design specifications certified by a licensed professional engineer for approval by the Department.

i. For purposes of this section, a deviation that affects the regulated substance or the maximum and/or minimum operating temperatures and/or pressures shall be considered a major modification and require additional evaluation and approval, including approval pursuant to N.J.A.C. 7:1F-5.2.

3. In addition to the requirements for well construction at N.J.A.C. 7:9D, any well or shaft must be constructed with casing of appropriate depth, cementing, tubing, pipes, and other equipment to ensure and maintain mechanical integrity.

4. The separation between any individual underground storage caverns within a new or expanded facility shall be a distance sufficient to ensure that the caverns are able to maintain mechanical integrity and can be safely operated, and that the migration of the regulated substance(s) between caverns is prevented.

5. Corrosion control measures must be implemented during construction.

6. Instrumentation to measure the pressure, level, flow rate, and temperature of any regulated substance that is injected or with drawn from the cavern must be installed and calibrated.

7. A ground water detection monitoring system must be installed, at appropriate locations and depths, to detect any releases from the system to ground water.

8. A ground water level (high and low) monitoring system must be installed at appropriate locations and depths.

9. A dust control plan must be implemented during all construction activities.

10. An atmospheric detection system for accidental releases must be installed.

11. A soil vapor monitoring system designed to detect any migration of the regulated substance in the soil above the cavern area must be installed.

12. The system must include a first emergency shutdown valve (first ESV) on any penetration shaft used to inject or withdraw the regulated substance into the cavern, except the vapor pressure relief line. The first ESV must be, at a minimum:

i. Fail-safe;

ii. Fire-safe;

iii. Part of an emergency shutdown system that will close the valve upon detection of excess flow or pressure, gas leak detection, or fire;

iv. Capable of being activated locally at the cavern area and remotely; and

v. Incapable of being opened remotely.

(d) The owner shall maintain, and control, all of the surface and mineral rights of all privately owned land within 300 feet of the surface footprint of the cavern.

(e) All information required pursuant to this section shall be completed, in accordance with accepted industry standards and certified by a licensed professional engineer.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-2.3 Process hazard analysis

(a) If an owner and operator of an underground storage cavern system stores a regulated substance that is an extraordinarily hazardous substance as defined pursuant to the Toxic Catastrophe Prevention Act Program rules at N.J.A.C. 7:31-1.5, the requirements of that chapter shall apply to process hazard analyses.

(b) If (a) above is not applicable to an owner and operator, the following requirements apply:

1. The process hazard analysis must be conducted using one of the following methodologies:

i. What-If Analysis;

ii. Checklist;

iii. What-If/Checklist;

iv. Hazard and Operability Study or "HAZOP";

v. Failure Mode and Effects Analysis or "FMEA";

vi. Fault Tree Analysis or "FTA"; or

vii. An appropriate equivalent methodology.

2. The process hazard analysis must address:

i. The hazards of the system;

ii. Any previous incident that had a likely potential for catastrophic consequences;

iii. Any engineering and/or administrative controls applicable to the hazards and their interrelationships, such as the appropriate application of detection methodologies, including system monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors, to provide early warning of a release;

iv. Consequences of failure of the engineering and/or administrative controls;

v. Siting of the system;

vi. Human factors; and

vii. A qualitative evaluation of a range of the possible safety, environmental, and health effects of failure of the engineering and/or administrative controls.

3. The owner and operator shall perform the process hazard analysis, in accordance with the following:

i. The owner and operator shall utilize a team with expertise in engineering and operations to assist with the process hazard analysis. The team shall include at least one employee of the owner and operator who has experience and knowledge specific to the system, and one person knowledgeable in the process hazard analysis methodology being used.

ii. Following completion of the process hazard analysis, the owner and operator shall:

(1) Assure that the recommendations are resolved in a timely manner and that the resolution is documented; and

(2) Document what actions are to be taken, complete the actions as soon as possible, develop a written schedule of when additional actions are to be completed, and communicate the actions with operating, maintenance, and other employees whose work assignments are in the system and who may be affected by the recommendations or actions.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-2.4 Assessments of environmental, health, and climate change impacts

(a) Prior to construction of any underground storage cavern system and as part of any application for an approval to construct pursuant to N.J.A.C. 7:1F-4, the owner and operator of an underground storage cavern system shall prepare and submit to the Department an environmental and health impact statement (EHIS) utilizing a systematic, interdisciplinary approach in order to ensure the integrated assessment of technical, economic, environmental, and social parameters potentially affected by the construction and operation of an underground storage cavern system. The EHIS must include an environmental inventory, environmental assessment, and health assessment, as described at (b), (c), and (d) below. Where the information addressing a requirement of the inventory is supplied in the engineering designs or reports, reference to such designs or reports may be noted in the inventory, provided the appropriate section and page number of the design or report is cross-referenced and indexed.

(b) The environmental inventory must contain a description of the information listed below. If any category described below presents no impact relative to the proposed facility, a notation of non-applicability shall be entered in the environmental inventory for that category.

1. The purpose of the underground storage cavern system, including an analysis of the social and economic benefits to the owner and operator and the local community;

2. The construction of the system, including:

i. An anticipated schedule of major phases of work; and

ii. The planned destination for excavated materials and any potential environmental concerns;

3. The operations at the system after construction, including an estimate of the volume of the regulated substance to be handled and/or transferred, methods of handling and/or transfers, and a layout of the system that depicts handling and transfer locations;

4. The surrounding vicinity of the proposed system or facility, including a vicinity map, to scale, depicting the boundaries of the facility, the specific zoning designations within 1,000 feet of the perimeter of the boundaries of the facility, the location of all existing and proposed utility lines, pipelines, or other utility structures that will service the facility, including, but not limited to, the stormwater drainage system, sanitary sewer system, water supply system, and energy system, other subsurface activities, including drilling, storage, mining, and/or wells not related to the operation of the system, and all wellhead protection areas;

5. The site of the proposed system, including a site plan map, to scale, specifying the boundaries of the facility, total acreage of the facility, surface footprint of any cavern, and a facility layout of all buildings, access roads, internal routes of traffic flow, and monitoring systems;

6. The impact that the proposed facility will have on local transportation patterns, drainage and soil characteristics, surface and ground water quality, endangered or threatened wildlife and vegetation, storm water and wastewater collection and/or treatment capability, water supply capability, ambient acoustical conditions, and air quality;

7. How the system or facility will conform or conflict with the objectives of any applicable Federal, State, or local land use and environmental requirements including, but not limited to, those affecting the following:

i. The floodway and flood fringe areas of the flood hazard areas as identified by the Department pursuant to the State Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq., or areas identified under the flood insurance studies prepared by the Federal Emergency Management Agency (FEMA);

ii. Areas designated as wild, scenic, recreational, or developed recreational rivers pursuant to the Natural Wild and Scenic Rivers Act, 16 U.S.C. § 1271, or the New Jersey Wild and Scenic Rivers Act, N.J.S.A. 13:8-45 et seq.;

iii. Critical habitat of endangered or threatened species of plants, fish, or wildlife as defined by the Federal Endangered Species Act of 1973, P.L. 93-205, or the New Jersey Endangered and Non-Game Species Conservation Act, N.J.S.A. 23:2A-1 et seq.;

iv. Wetlands, tidelands, and coastal zone areas, as identified by the Department, pursuant to the Coastal Zone Management Rules, N.J.A.C. 7:7, and as identified on the U.S. Fish and Wildlife Services National Wetlands Inventory Maps;

v. The Preservation and Protection Areas, as established by the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq., and Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 et seq.;

vi. Nonattainment areas, as defined at N.J.A.C. 7:27-18;

vii. Areas subject to the prevention of significant deterioration of air quality criteria, as defined at 40 CFR 52.21;

viii. Activities that may impact the acoustical quality of residential and commercial properties, pursuant to N.J.A.C. 7:29;

ix. Activities that may significantly impact water quality, pursuant to N.J.A.C. 7:15;

x. Lands that have been duly certified by the State Agriculture Development Committee as agricultural development areas, pursuant to the Agricultural Retention and Development Act, N.J.S.A. 4:1C-11 et seq.;

xi. Watershed areas for water classified by the Department as FW-1 waters or FW-2 Trout Production Waters, pursuant to the Surface Water Quality Standards, N.J.A.C. 7:9B;

xii. Areas over a sole source aquifer designated pursuant to Section 1424(e) of the Safe Drinking Water Act of 1974 (Public Law 93-523, 42 U.S.C. §§ 300 et seq.);

xiii. Areas within the critical supply areas as defined by the Water Supply Management Act, N.J.S.A. 58:1A-1 et seq.;

xiv. Areas that will encroach upon, damage, or destroy any area, site, structure, or object included in the National or State Register of Historic Places established by N.J.S.A. 13:1B-15.128;

xv. The re-use or disposal of excavated rock or materials, including how the system or facility will conform or conflict with N.J.A.C. 7:28, as applicable;

xvi. Areas dedicated to recreational or open space use including, but not limited to, national parks, national recreation areas, national forests, national wildlife refuges, State wildlife management areas, State parks, State forests, State-designated natural areas, and county or local parks, wildlife sanctuaries, and recreational facilities;

xvii. Areas subject to cleanup pursuant to the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.; and

xviii. New Jersey's Executive Order No. 100 (2020) and the resulting Department-adopted rules and guidance documents implementing protections against climate threats.

(c) An environmental assessment must provide a detailed evaluation of the potential impacts of the proposed facility on the environment including, but not limited to, all parameters identified in the environmental inventory at (b) above. The assessment shall include, but not be limited to, the following:

1. An evaluation of both positive and negative, as well as, primary (direct or immediate) and secondary (indirect or long term) impacts on each parameter under conditions of maximum usage and a correlation of such impacts with various stages of the site preparation, facility construction, operation, dormant, and decommissioning phases;

2. An identification and description of the modeling techniques used to predict impacts on the various parameters identified at (b) above. Where applicable, a calibrated and verified model shall be used and a copy of the model in the appropriate format shall be transmitted to the Department. Where an accepted modeling technique is not available, best professional judgment may be used. A detailed description of the logical reasoning and assumptions made in the exercise of best professional judgment shall be incorporated to permit independent review;

3. Isopleths, grid maps, or other maps to depict potential zones of substance migration surrounding any and all sources of a release. Identify the type and location of each source;

4. A quantification of all potential environmental impacts identified, where possible. If such quantification is not included, an explanation of the reason for such omission shall be provided;

5. A qualitative discussion of all potential environmental impacts identified; and

6. A description of the mitigative techniques proposed to address any potential environmental impact associated with the proposed system.

(d) A health impact assessment must provide a detailed evaluation of the potential impacts on human health of a release of a regulated substance from a proposed system, including, but not limited to, the following:

1. A description and discussion of the health risk assessment methodology to be employed, including detailed descriptions of the logical reasoning and assumptions employed in the method. A bibliography of reference material utilized in the preparation of the assessment shall be provided.

2. A discussion of the level of uncertainty involved in the overall assessment. This discussion shall address the uncertainty involved in the estimation of individual parameters, such as the size and scope of the release, levels of exposure and health effects, as well as the implications of complex uncertainties;

A listing of all potential substances that could be released from the system, and the amount of the release, concentrations, and pathways;

4. Based on the list at (d)3 above, a separate listing of substances that will be utilized to assess health risks, including all known carcinogens;

5. For each of the substances listed at (d)4 above, a toxicity profile shall be developed, as applicable. This profile shall include data on the physical and chemical nature of the regulated substance, as well as a description and discussion of data available regarding the environmental fate, acute and chronic effects, and epidemiology of the substance. This profile shall include a listing of available toxicological, epidemiological, or other acute or chronic health effects studies used or otherwise available on the regulated substance;

6. A quantification of the potential health impacts, where possible. If such quantification is not included, an explanation of the reason for such omission shall be provided; and

7. A detailed description of the mitigation techniques proposed to address any potential health impacts associated with the proposed facility.

(e) The EHIS must include a summary discussion of any potential adverse impacts identified in the environmental and health assessments at (c) and (d) above that cannot be avoided should the proposed facility be constructed and be operational. For those impacts that cannot be avoided, their implications, and the reasons why the proposed facility should be permitted, shall be described. Where mitigation measures are proposed to reduce these potentially adverse impacts, the projected effectiveness and costs of the mitigative measures shall be discussed.

(f) The owner and operator of a system shall include a climate change impact assessment with any application for a permit or permit renewal pursuant to N.J.A.C. 7:1F-4. Assessing the impacts of climate change on a system shall be conducted, in accordance with (f)1 through 4 below. The Department may accept a climate change impact assessment, or similar evaluation conducted to satisfy other Department regulatory or permitting programs provided it includes the items described in this subsection.

1. The assessment shall contain the following information:

i. The name, telephone number, and location of the facility, including street address, county, and municipality;

ii. The name, title, telephone number, email address, and business address of the preparer of the assessment;

iii. A certification by the owner, operator, and preparer, if applicable, pursuant to N.J.A.C. 7:1F-1.8; and

iv. The data, potential impacts, and measures to prevent discharges and mitigate the climate change impacts evaluated at (f)2, 3, and 4 below.

2. At a minimum, the assessment shall use data and tools from the Department's Climate Change website (http://www.nj.gov/dep/climatechange) or other current scientific resources, which must be referenced in the prepared document, to provide a written report considering the following scenarios:

i. Whether the system, including any above-ground ancillary equipment, is located within a flood hazard area, as defined by the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13. A system not located in a flood hazard area shall identify the distance from the cavern system to the closest flood hazard area and minimum value or depth flood waters would have to rise to potentially reach the cavern system, using data available at the time the assessment is being prepared for the Department;

ii. The 100-year storm events and facility flooding expected;

iii. The facility's proximity to sea level rise projections for New Jersey at approximately one, 2.5, four, and seven feet above year 2000 average sea level. Depending on the data, tools, and scientific resources used, the approximate values may vary, but should remain within 0.5 feet of the values given here; and

iv. Extreme weather events, such as hurricanes, tropical storms, tornados, or significant precipitation.

3. Using the data and projections at (f)2i through iv above to develop a written summary.

i. Evaluating the potential of a release or impacts to the system.

ii. Analyzing the risk to the system from flooding or potential inundation.

iii. Evaluating the potential for health-related impacts that may result from flooding or other damage to the system or a release of the regulated substance into flood waters.

iv. Maps may be included, and should be in a format specified by the Department.

4. A list of measures to prevent releases and mitigate the climate change impacts summarized at (f)3 above, including:

i. Those determined to be already present at the facility, or in the design specifications for construction of a proposed cavern system; and

ii. Those selected to be implemented and an anticipated schedule for their implementation.

(g) In addition to the requirements pursuant to this section, the Department retains the right to request additional information from the applicant regarding the EHIS or climate change impact assessment.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-2.5 Third-party evaluation

(a) The owner and operator of an underground storage cavern system shall engage a third party to independently review the feasibility study as required at N.J.A.C. 7:1F-2.1, the design and construction submittals as required at N.J.A.C. 7:1F-2.2, and the process hazard analysis as required at N.J.A.C. 7:1F-2.3.

(b) The owner and operator shall determine and document that the third party meets the following competency and independence requirements:

1. The third party shall be knowledgeable regarding geologic formations and product attributes necessary for the review of the feasibility study and process hazard analysis;

2. The third party shall be experienced with the design and construction of cavern systems and applicable, accepted industry standards;

3. The third party shall act impartially when performing any evaluation activity pursuant to this chapter;

4. The third party shall receive no financial benefit from the outcome of its evaluation beyond that for the evaluation itself;

5. The third party shall not have conducted any past research, development, design, construction, or consulting services for the owner or operator within the two years prior to being engaged by the owner and operator. For purposes of this requirement, consulting does not include performing or participating in third-party evaluations pursuant to this chapter;

6. The third party shall not provide any business or consulting services to the owner or operator, including any advice or assistance to implement the findings or recommendations of the third party's evaluation, for a period of at least two years following the submission of the evaluation; and

7. The third party shall sign a conflict of interest statement certifying that it and its personnel shall comply with the provisions at (b)3,4, 5, and 6 above and shall not accept future employment with the owner or operator for a period of at least two years following submission of the third party's evaluation.

(c) The owner and operator shall submit documentation to the Department, prior to the submission of any evaluation report and as part of a permit application pursuant to N.J.A.C. 7:1F-4, demonstrating that the third party meets the competency and independence requirements at (b) above.

(d) The owner and operator shall ensure that the third party:

1. Manages the evaluation and participates in the initiation, design, implementation, and reporting of the evaluation;

2. Determines the appropriate roles and responsibilities for the personnel involved in the evaluation;

3. Prepares an evaluation report; and

Certifies the evaluation report and its contents as meeting the requirements listed at (e) below.

(e) An evaluation report shall:

1. Identify all personnel of the third party participating in the evaluation, including names, titles, employers, and/or affiliations, and summaries of qualifications;

2. Include an evaluation of each component of the feasibility study, design specifications, and process hazard analysis required at N.J.A.C. 7:1F-2, and identify any compliance, design, or performance deficiencies;

3. Describe, with specificity, the documents or materials reviewed, and the review methods and calculations used; and

4. Include the certification required at N.J.A.C. 7:1F-1.8.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 3 OPERATING REQUIREMENTS

N.J. Admin. Code § 7:1F-3.1 As-built specifications and mechanical integrity

(a) Prior to beginning operation activities, the owner and operator shall prepare and provide to the Department:

1. A map to scale of the location of the system as constructed;

As-built diagrams of the system; and

3. A report of the geological conditions encountered during construction including, if applicable, any steps taken to stabilize the cavern or system, and any modifications from the initial proposal. The location of any stabilization efforts should be depicted on a map of appropriate scale.

(b) Prior to the injection of any regulated substance, the owner and operator shall:

1. Conduct a mechanical integrity test at the selected test pressure of the cavern system in its entirety and each individual penetration into the cavern;

2. Measure the storage volume of the cavern;

3. Provide the results of the mechanical integrity tests demonstrating the system is capable of storing a regulated substance under the system's maximum allowable operating pressure; and

4. Provide the precise storage volume measurement to the Department.

(c) The information in this section shall be certified by a licensed professional engineer, in accordance with accepted industry standards.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.2 Operation and maintenance

(a) The owner and operator of an underground storage cavern system shall submit to the Department a plan for the operation and maintenance of the system. The plan shall:

1. Establish procedures for air monitoring to detect any release of a regulated substance.

2. Establish procedures for ground water and soil vapor monitoring, in accordance with N.J.A.C. 7:1F-3.3.

3. Establish procedures to operate the system at all times as provided at (a)3i and ii below and maintain records of these operating parameters. The owner and operator shall provide the Department any information necessary to demonstrate that appropriate safety measures will be implemented and maintained to prohibit pressures and temperatures outside the range established for the system and approved by the Department.

i. For an underground storage cavern system with an approval to construct issued pursuant to N.J.A.C. 7:1F-4, procedures to operate the system at all times within the maximum and minimum operating pressures and temperatures as submitted to the Department pursuant to N.J.A.C. 7:1F-2.2. The maximum operating pressure (MOP) must be less than the maximum allowable operating pressure (MAOP).

ii. For an existing underground storage cavern system in operation as of May 1, 2023, a procedure to operate the system at all times within the pressures and temperatures established for the system and approved by the Department.

4. Establish the following additional operating procedures:

i. Procedures for the initiation of operation activities;

ii. Procedures for the cessation of operation activities under normal operating conditions;

iii. Procedures for the initiation of operation activities after a period of dormancy or decommissioning, which must include testing pursuant to (a)1 above;

iv. Procedures for normal operating conditions;

v. Procedures for abnormal operating conditions, including the expected consequences of any deviation and steps required to correct or avoid the deviation;

vi. Procedures during emergency conditions;

vii. Procedures for operation activities under temporary or special operating conditions; and

viii. A description of any safety systems, including information regarding the safety systems' functions.

5. Establish a maintenance plan, including:

i. A schedule for inspection and testing of ancillary system equipment including, but not limited to, storage wells, wellheads, pipes, lines, tubes, and instrumentation up to and including the first emergency shutdown valve. The schedule must include a list of equipment, the identification of the type of inspection and test, and the frequency of inspections and testing;

ii. Procedures for corrosion control;

iii. A schedule for inspection and testing of release detection and monitoring systems. The schedule must include a list of the release detection and monitoring systems, the identification of the type of inspection and test, and the frequency of inspection and testing;

iv. Procedures for repairs; and

v. Procedures for testing the integrity of the cavern system once every five years following issuance of a permit, or at shorter intervals, if applicable.

(1) The method for testing shall be specified in the procedures and can be performed in situ, with regulated substance in place, or after a regulated substance is withdrawn. If necessary, the system must be rendered inert to ensure the prevention of explosion or other hazardous conditions.

(b) Upon receiving approval from the Department to operate the system, the owner and operator shall implement the above operation and maintenance plans and any other conditions of the approved permit issued pursuant to N.J.A.C. 7:1F-4.

(c) The owner and operator shall maintain records of the established procedures, repairs, inspections, and testing results demonstrating compliance with the operation and maintenance plans at (a) and (b) above. Such records must be maintained at the site and provide information regarding the previous five years of operation at the system.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.3 Ground water and soil vapor monitoring

(a) Prior to operation, the owner and operator of an underground storage cavern system shall measure background ground water quality at the facility. During operation, the owner and operator shall monitor ground water, quarterly, for any release of a regulated substance.

(b) A ground water sample(s) at the site, at the depth of the underground storage cavern, shall be taken before construction begins, in order to establish baseline water quality. This sample shall be analyzed by a laboratory certified pursuant to N.J.A.C. 7:18 for the regulated substance, pH, specific conductance (SC), dissolved oxygen, turbidity, and for those constituents with specific ground water quality criteria listed in Table 1 of the Appendix at N.J.A.C. 7:9C.

(c) Following construction, before the system is used and during operation, all ground water observation wells shall be monitored quarterly, and analyzed by a New Jersey-certified laboratory, for the regulated substance, pH, specific conductance (SC), dissolved oxygen, turbidity, and any other parameters specified in the permit. If there is an unexplained change in cavern pressure or ground water levels, such that a leak of the regulated substance to ground water from the system is suspected, or if the Department has grounds to suspect a leak, the Department may direct that all ground water observation wells shall be sampled for all, or some, of the baseline water quality constituents. The Department shall specify, in the system's permit, the number, location, and depth of ground water observation wells.

(d) The owner and operator shall additionally monitor, on a continuous basis:

1. The level of ground water immediately above the cavern;

2. The volume of ground water pumped, diverted, or otherwise removed from the cavern for operational purposes. All ground water pumped must be analyzed, treated, and discharged in accordance with all relevant State and Federal regulations; and

3. Soil vapor in the unsaturated soil above the cavern for the presence of the regulated substance.

(e) The owner and operator shall report results of ground water quality, level, volume, and soil vapor monitoring to the Department on a quarterly basis.

1. Monitoring of ground water volumes shall be done, in accordance with N.J.A.C. 7:19-2.14(a)4, or a separate water allocation permit, if required at N.J.A.C. 7:19.

(f) In the event of a release from the system to ground water, the owner and operator must immediately notify the Department's emergency communications center at 1-877 WARN DEP (1-877-927-6337) and take any immediate action necessary to mitigate the release. The owner and operator shall coordinate and conduct remediation activities, in accordance with Department rules.

(g) The owner and operator shall continue to monitor ground water, in accordance with (c) through (f) above during any time period the cavern system is dormant.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.4 Emergency response plan

(a) The owner and operator of the system shall develop and implement an emergency response plan to protect public health and the environment. The plan must include the following:

1. Procedures for informing the public and local emergency response agencies, including the Department's environmental emergency phone number, 1-877 WARN DEP (1-877-927-6337) in the event of a release from the system;

2. Documentation of first-aid and emergency medical treatment necessary to treat accidental human exposures;

3. Procedures and measures for emergency response, including any procedures and measures to be implemented in the event of a catastrophic release;

4. A list of emergency response equipment available on site, its location, and procedures for its inspection, testing, and maintenance;

5. Procedures to review and update, as necessary, the emergency response plan to reflect changes at the underground storage cavern system and to ensure that employees are informed of any changes;

6. Initial and annual refresher emergency response training for all employees in relevant procedures to implement the emergency response plan; and

7. A procedure to conduct an initial full-scale emergency response exercise for a release scenario from the system prior to commencing operation and a subsequent full-scale exercise at least once every five years.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.5 Release reporting, suspected releases, and investigations

(a) In the event of a release from the system, the owner and operator shall:

Implement procedures and measures for emergency response pursuant to N.J.A.C. 7:1F-3.4(a); and

2. Notify the Department, in accordance with the release reporting requirements at (d) below.

(b) For a suspected release, the owner and operator shall complete an investigation of a suspected release within seven calendar days of the indication of a suspected release. An indication of a suspected release may include, but is not limited to:

1. An air monitoring system indicates a release of a regulated substance;

2. Ground water monitoring conducted, pursuant to N.J.A.C. 7:1F-3.3, indicates that a release of a hazardous substance may have occurred;

3. There is evidence of a hazardous substance or resulting vapors in the soil, in surface water, or in any underground structure or well in the vicinity of the system;

4. Maintenance or testing procedures conducted, pursuant to N.J.A.C. 7:1F-3.2(a)5, indicate there may be a failure in the cavern or ancillary equipment with a potential to cause a release; or

5. Any other method of discovery of a suspected release.

(c) The owner and operator shall document the suspected release investigation conducted at the facility and make it available for inspection by the Department. The report shall include, but not be limited to, the following:

1. Date, name(s), and position title(s) of the individual(s) conducting the investigation; and

2. A description of the indication of the suspected release and the relevant information used to evaluate and arrive at a conclusion disproving or confirming a release.

(d) Any person, including, but not limited to, the owner or operator, must immediately report a release to the Department's emergency communications center at 1-877 WARN DEP (1-877-927-6337). Such notification shall include the following information:

1. Company name and address;

2. The name, position, and telephone number of the individual providing notification;

3. The time of, or estimated time of, the release and the projected duration;

4. The nature of the release, including the type of regulated substance;

5. As applicable, the quantity, or estimated quantity, of regulated substance released and its offsite impacts;

6. As applicable, weather conditions, including wind direction and speed; and

7. Updates to the above information, as applicable, throughout the duration of the release event.

(e) In the event of a confirmed release from the cavern system, the owner and operator must take immediate action to mitigate the release, including any approved operating procedures for the conditions. The owner and operator shall coordinate and conduct remediation activities, in accordance with Department rules.

(f) Following a release, the owner and operator must investigate the release as soon as reasonably possible, but not later than 48 hours following discovery of the release. If an owner and operator of an underground storage cavern system stores a regulated substance that is an extraordinarily hazardous substance (EHS) as defined pursuant to the Toxic Catastrophe Prevention Act Program rules at N.J.A.C. 7:31-1.5, the EHS accident investigation requirements of that chapter apply.

Upon completing the investigation, the owner and operator shall prepare a report to document the release and investigation findings. The report must include the following:

i. Date, time, and location of the release;

ii. Name(s), position title(s) of the investigator(s), and date the investigation of the release began;

iii. A description of the release with all the relevant information. Include the source, identify the regulated substance, amount, and duration of the release, if known or reasonably approximated based on the investigation information;

iv. Identify the impacts, if any, of the release on the surrounding environment, community, system, or facility equipment. Include corrective actions necessary to repair the system and equipment and mitigate any impacts to the surroundings;

v. Identify what caused the release, either directly or indirectly, with any factors found to have contributed to and/or caused the release;

vi. Recommendations resulting from the investigation to prevent a recurrence; and

vii. The Department may request additional information from the owner and operator regarding the release and investigation findings.

2. The owner and operator shall document the repairs, corrective actions, and recommendations completed following completion of the investigation report and maintain such records with the report.

(g) The owner and operator shall keep documentation of an investigation, performed in accordance with this section and make it available for inspection by the Department for the operational life of the underground storage cavern system.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.6 Prohibitions

(a) No person shall introduce a regulated substance into an underground storage cavern system that is not permitted with the Department pursuant to N.J.A.C. 7:1F-4, or where a permit has been revoked, suspended, or denied.

(b) No person shall introduce a regulated substance into an underground storage cavern system, store a regulated substance in an underground storage cavern known to be releasing a regulated substance.

(c) No person shall store a regulated substance in an underground storage cavern known to be releasing a regulated substance.

(d) No person shall withdraw a regulated substance from an underground storage cavern system that is known or suspected to be releasing a regulated substance from any ancillary equipment associated with the system, if withdrawal could result in the further release of a regulated substance.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.7 Recordkeeping

(a) The owner and operator of an underground storage cavern system shall maintain the records described in this section. The records must be immediately available and provided to the Department upon request.

1. The owner and operator shall maintain, at the site, the records required at N.J.A.C. 7:1F-2, 3.1, and 3.5. These records must be maintained for the lifetime of the cavern system.

2. The owner and operator shall maintain, at the site, the records required at N.J.A.C. 7:1F-3.2, 3.3, and 3.4. Such records must provide information regarding the previous five years of operation at the system.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-3.8 Right of entry

The owner and operator of any site where an underground storage cavern system or facility is, or is proposed to be located, including any locations where associated monitoring equipment or records required by this chapter are kept, shall permit the Department to enter for purposes of inspection, sampling, copying, or photographing. Such right of inspection shall not be conditioned upon any action by the Department, except the presentation of appropriate credentials, as requested. Owners, operators, employees, and representatives shall not hinder or delay, and shall, upon request, assist the Department in the performance of all aspects of any inspection.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 4 PERMITTING REQUIREMENTS

N.J. Admin. Code § 7:1F-4.1 General

(a) Prior to construction and operation of a proposed new underground storage cavern system, the owner and operator shall:

1. Obtain approvals from the Department, in accordance with N.J.A.C. 7:1F-4.2;

2. If applicable, obtain a construction permit issued pursuant to the New Jersey Uniform Construction Code, N.J.A.C. 5:23, prior to the construction or modification of the system; and

3. If applicable, obtain approvals from the Department of Labor and Workforce Development.

(b) By May 1, 2028, the owner and operator of an existing underground storage cavern system in operation as of May 1, 2023, shall submit to the Department a permit renewal application and include the following materials:

1. A map and diagrams, pursuant to N.J.A.C. 7:1F-3.1(a);

2. Plans for operation and maintenance of the cavern system, pursuant to N.J.A.C. 7:1F-3.2;

3. An emergency response plan, pursuant to N.J.A.C. 7:1F-3.4;

4. A decommissioning plan and financial responsibility, pursuant to N.J.A.C. 7:1F-6.1(a) and 6.2;

5. An integrity test of the system conducted, in accordance with N.J.A.C. 7:1F-3.2(a)5 v; and

6. A climate change impact assessment in accordance with N.J.A.C. 7:1F-2.4(f).

(c) The Department shall review the materials required pursuant to (b) above, in accordance with N.J.A.C. 7:1F-4.2(i) and (j). Any existing permit(s) previously issued to owners and operators of underground storage cavern systems shall remain in effect until the Department completes the review and either approves an updated permit or denies the existing permit pursuant to N.J.A.C. 7:1F-4.7. Upon approval and issuance of a new permit to operate, the owner and operator shall thereafter renew its permit, in accordance with N.J.A.C. 7:1F-4.6.

(d) The Department may seek comments from the public whenever the Department finds a significant degree of public interest in an application or whenever the Department determines such comments might clarify one or more issues involved in the decision on the application.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.2 Permit application

(a) All permit applications must be submitted on forms provided by the Department obtained from the address at N.J.A.C. 7:1F-1.10 and contain the information specified at (b) or (h) below, or N.J.A.C. 7:1F-5.1 or 5.2, as applicable, in the format and number specified in the form. The permit application must be accurately completed, signed, dated, and returned to the address provided at N.J.A.C. 7:1F-1.10.

(b) Prior to beginning construction activities and in addition to the requirements pursuant to (a) above, an owner and operator of a proposed underground storage cavern system shall submit with its permit application:

1. A feasibility study, completed in accordance with N.J.A.C. 7:1F-2.1;

2. Design specifications, in accordance with N.J.A.C. 7:1F-2.2(a);

3. A process hazard analysis, in accordance with N.J.A.C. 7:1F-2.3;

4. Assessments of environmental, health, and climate change impacts, in accordance with N.J.A.C. 7:1F-2.4; and

5. Documentation demonstrating the competency and independence of the third party conducting an evaluation of the application materials at (b)1, 2, and 3 above, in accordance with N.J.A.C. 7:1F-2.5(b) and (d).

(c) Upon receipt of the permit application, the Department shall make an administrative review of the application materials required at (a) and (b) above, as follows:

1. If the application does not contain all documents and information required at (a) and (b) above, the Department shall, within 30 days of receipt of the application, advise the applicant, in writing, as to the additional information required to make the application administratively complete and the date by which the additional information must be received by the Department. The Department may return the application with the written notification to the applicant. A determination of incompleteness shall stop any review and shall stay the time limitations set forth at (d) below.

2. If the application contains all documents and information required pursuant to (a) and (b) above and is determined to be administratively complete, the Department, within 30 days of receipt of the application, shall so advise the applicant in writing.

(d) After the Department declares the application materials required pursuant to (a) and (b) above are administratively complete, the owner and operator shall retain a third party, in accordance with N.J.A.C. 7:1F-2.5, to conduct and complete an evaluation report of the application materials submitted pursuant to (a) and (b)1, 2, and 3 above. The third party shall submit its evaluation report directly to the Department at the address provided at N.J.A.C. 7:1F-1.10, for technical review. Within 180 days of receiving the third-party evaluation report, the Department shall review the application materials required at (a) and (b) above and the evaluation report, in accordance with the following:

1. If the materials required pursuant to (b) above and the evaluation report do not contain sufficient technical information or if the technical information requires clarification, the Department shall so advise the owner and operator, in writing, and provide a list of deficiencies and additional or clarifying information required to make the application complete. If the requested additional or clarifying information is not submitted to the Department within 30 days of receiving the notice of deficiency, the Department may:

i. Extend the date by which the applicant must provide additional or clarifying information; or

ii. Deny the application pursuant to N.J.A.C. 7:1F-4.7.

2. The third party shall evaluate any changes to the materials submitted, in accordance with (b)1, 2, and 3 above, as appropriate. The third party shall submit its additional evaluation to the Department.

3. If the materials, required pursuant to (b) above, and the evaluation report contain sufficient technical information and the proposed system conforms with the protections and requirements of the Act and this chapter, the Department shall prepare a draft approval to construct and bill the owner and operator for the Department review activity fees, in accordance with N.J.A.C. 7:1F-1.9(g).

(e) The Department shall publish, in the DEP Bulletin, a notice of the receipt of the permit application, and shall also publish notice upon each significant action or determination the Department makes regarding an application under review. The notice shall include:

1. The name of the owner and operator of the system;

2. The permit application number;

3. The location of the proposed system or facility; and

4. The date and description of the Department's action or determination.

(f) Upon publication of the notice in the DEP Bulletin regarding a draft approval to construct, the Department shall hold a public hearing, no sooner than 15 days after publication of the notice. A comment period will also be held open for a period of 30 days after publication in the DEP Bulletin. The Department, in its discretion, may extend the comment period for an additional 30 days beyond the initial 30-day comment period.

(g) Upon completion of a comment period for a draft approval to construct, the Department shall:

1. Issue an approval for construction with any condition(s) it deems appropriate;

2. Require additional or clarifying information from the owner and operator if information received during the comment period necessitates substantial changes to the application or additional review by the Department; or

3. Deny the application pursuant to N.J.A.C. 7:1F-4.7.

(h) Prior to beginning any operation activity, and in addition to the requirements at (a) and (b) above, the owner and operator of a proposed system shall submit:

1. As-built specifications and mechanical integrity testing results, in accordance with N.J.A.C. 7:1F-3.1;

2. An operation and maintenance plan, in accordance with N.J.A.C. 7:1F-3.2;

3. An emergency response plan, developed in accordance with N.J.A.C. 7:1F-3.4;

4. A decommissioning plan, in accordance with N.J.A.C. 7:1F-6;

5. A climate change impact assessment in accordance with N.J.A.C. 7:1F-2.4(f); and

6. Payment of the fee for the Department's services, review, and processing of the application for approval to construct.

(i) Prior to approving a permit to operate the system, the Department shall make an administrative review of the application materials required pursuant to (h) above, as follows:

1. If the application does not contain all documents and information required pursuant to (h) above, the Department shall, within 30 days of receipt of the application, either return the application or advise the applicant, in writing, as to the additional information required to make the application administratively complete and the date by which the additional information must be received by the Department. If an application is returned, the owner and operator shall be advised, in writing, as to the additional information required to make the application complete.

2. If the application contains all documents and information required pursuant to (h) above and is determined to be administratively complete, the Department, within 30 days of receipt of the application, shall so advise the owner and operator in writing.

(j) After the Department declares the application materials required pursuant to (h) above are administratively complete, the Department shall review within 90 days the application materials required pursuant to (h) above, in accordance with the following:

1. If the materials required at (h) above do not contain sufficient technical information or if the technical information requires clarification, the Department shall so advise the owner and operator, in writing, and provide a list of deficiencies and additional or clarifying information required to make the application complete. If the requested additional or clarifying information is not submitted to the Department within 30 days of receiving the notice of deficiency, the Department may:

i. Extend the date by which the applicant must provide additional or clarifying information; or

ii. Deny the application pursuant to N.J.A.C. 7:1F-4.7.

2. If the materials required pursuant to (h) above are determined by the Department to contain sufficient technical information and the constructed cavern system conforms with the protections and requirements of the Act and this chapter, and payment of the applicable fee assessed pursuant to N.J.A.C. 7:1F-1.9(g) is made, the Department shall issue an approved permit to operate the cavern, with any conditions it deems appropriate. The Department shall publish notice in the DEP Bulletin, in accordance with (e) above.

(k) The owner and operator of a system shall notify and submit to the Department any change or update to the information submitted, in accordance with (h) above prior to the Department's issuance of the approved permit to operate.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.3 Public access to permit information

All completed permit application forms, as well as documented information pertaining to the permit, shall be considered public records pursuant to N.J.S.A. 47:1A-1 et seq, except as set forth at N.J.A.C. 7:1D-3, Non-Public Records.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.4 Availability of permit

(a) The owner and operator of an underground storage cavern system for which the Department has issued a permit shall make the permit available for inspection by an authorized local, State, or Federal representative.

(b) The owner and operator of an underground storage cavern system for which the Department has issued a permit shall maintain one set of approved plans at the facility site during the course of the permitted activity and shall make the approved plans available for inspection by any authorized local, State, or Federal representative.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.5 Permit expiration

(a) Unless renewed pursuant to N.J.A.C. 7:1F-4.6, any permit to operate the system issued pursuant to this chapter shall expire after five years from the date of issuance.

(b) Any permit or approval issued pursuant to this chapter shall expire if the approved activity authorized by the permit is not commenced within 12 months after the effective date of the permit or approval.

1. In the event the approved activity has not been initiated within 12 months of issuance, the owner and operator may request an extension. The request for an extension shall be provided, in writing, to the address at N.J.A.C. 7:1F-1.10 and include the following:

i. The name of the facility and permit identification number;

ii. The owner's and operator's contact information; and

iii. The duration of extension being requested along with any reasons or justification for the request.

2. Upon receipt of an extension request, the Department will either approve the extension, specifying a new expiration date and publishing notice in the DEP Bulletin, or deny the request.

(c) For purposes of this section, a system shall be considered abandoned if the owner and operator does not timely renew its permit, in accordance with N.J.A.C. 7:1F-4.6.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.6 Permit renewal

(a) A permit to operate issued pursuant to this chapter for an underground storage cavern system shall expire five years from its issuance.

(b) No less than 120 days prior to expiration date of the permit, the owner and operator of a system shall submit to the Department a permit renewal application, the materials required pursuant to N.J.A.C. 7:1F-2.4(f), 3.2, and 3.4 and indicate to the Department any updates to the information since a prior issuance. The Department shall review the materials in accordance with N.J.A.C. 7:1F-4.2(h) through (j).

(c) A current permit for which a complete renewal application is submitted to the Department at least 120 days prior to the expiration date shall remain in effect until the Department grants or denies the renewal application.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.7 Grounds for denial, suspension, or revocation of a permit

(a) The Department may deny the issuance of a permit under this subchapter, if:

1. The permit application is incomplete, including submission of all applicable fees and financial assurance, or contains false, inaccurate, or insufficient information, or is illegible; or

2. The owner or operator of an underground storage cavern system fails to comply with any requirement of the Act or this chapter.

(b) The Department may suspend a permit, if:

1. The owner or operator of an underground storage cavern system violates any requirements of the permit or provisions of this chapter;

2. The owner or operator of an underground storage cavern system violates a statute, rule, or order of the Department; or

3. The owner or operator of an underground storage cavern system falsifies, or makes false representations to the Department on, any report, record, application requirement, or other permit requirement.

(c) The Department may revoke a permit, if:

1. The permit application contains false, inaccurate, or insufficient information;

2. An authorized representative is denied access to the site;

3. The owner or operator of an underground storage cavern system fails to comply with any requirement of the permit or provisions of the Act or this chapter; or

4. The owner or operator of an underground storage cavern system is performing, or has authorized, an activity that is not in compliance with this chapter.

(d) The Department shall inform the owner and operator of an underground storage cavern system of the denial of issuance, suspension, or revocation of a permit by notice. The notice shall include either specific grounds for the denial of issuance as set forth at (a) above, specific grounds for suspension of a permit as set forth at (b) above, or specific grounds for revocation as set forth at (c) above. The Department shall provide the notice by certified mail or by personal service. The notice will include any conditions necessary to protect the waters of the State, and public health and safety.

(e) The owner and operator of an underground storage cavern system that receives notice from the Department denying, suspending, or revoking a permit shall neither begin any activity proposed in its permit application nor continue any ongoing permitted activity.

(f) The duration of a suspension is at the discretion of the Department and will be determined according to the severity of the violation. The Department will not reinstate a suspended permit until:

1. The entire suspension period has expired; and

2. The reasons for the suspension are eliminated and corrected.

(g) The applicant who believes itself to be aggrieved, with respect to decisions made by the Department regarding any final permit or application denial may contest the decision and request a contested case hearing pursuant to N.J.A.C. 7:1F-7.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-4.8 Permit transfer

(a) In the event of the transfer of the underground storage cavern system to a new owner or operator, a change in ownership, or a change in name of an owner or operator, the new owner and/or new operator shall, before beginning or assuming control of operations of the system, submit written correspondence acknowledging and agreeing to operate the system, in accordance with this chapter, the current permit for the system, as well as the plans submitted pursuant to N.J.A.C. 7:1F-4.2(h).

(b) A new owner and operator shall notify the Department of the transfer in ownership and adopt an existing permit by submitting the permit application form, as provided for at N.J.A.C. 7:1F-4.2(a) identifying the new owner and operator information.

(c) In the event other changes or updates are required to the system's records or financial responsibility assurance mechanism, the new owner and operator shall identify and include that information in the correspondence to the Department at the address provided at N.J.A.C. 7:1F-1.10.

(d) The Department will review the information submitted pursuant to this section and provide a written correspondence acknowledging the change to the new owner and operator.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 5 MODIFICATIONS

N.J. Admin. Code § 7:1F-5.1 Minor modifications

(a) An owner and operator of an underground storage cavern system shall obtain approval from the Department prior to performing a minor modification.

(b) An owner and operator shall submit an application in accordance with N.J.A.C. 7:1F-4.2(a) for a minor modification, which shall include all information required pursuant to this chapter that is related to the proposed minor modification.

(c) Prior to approving a minor modification, the Department shall make an administrative review of the materials required pursuant to (b) above, as follows:

1. If the materials submitted are incomplete or do not contain the information required pursuant to (b) above, the Department shall, within 30 days of receipt of the materials, advise the owner and operator, in writing, as to the additional information required and the date by which the additional information must be received by the Department.

2. If the materials are complete, contain all of the information required pursuant to (b) above, and are determined to be administratively complete, the Department, within 30 days of receipt of the materials, shall so advise the owner and operator in writing.

(d) After the Department declares the materials submitted pursuant to (b) above are administratively complete, the Department shall review the materials within 90 days and, in accordance with the following:

1. If the materials submitted pursuant to (b) above do not contain sufficient technical information or if the technical information requires clarification, the Department shall so advise the owner and operator, in writing, and provide a list of deficiencies and additional or clarifying information required to make the application complete. If the requested additional or clarifying information is not submitted to the Department within 30 days of receiving the notice of deficiency, the Department may:

i. Extend the date by which the owner and operator must provide additional or clarifying information; or

ii. Deny the application pursuant to N.J.A.C. 7:1F-4.7.

2. If the materials required pursuant to (b) above contain sufficient technical information, the Department shall review the modification request to determine if the technical information and changes to the system conforms with the protections and requirements of the Act and this chapter. Following this review, the Department shall assess a fee, in accordance with N.J.A.C. 7:1F-1.9(g). Once payment of the fee is received the Department will either approve the modification with any conditions it deems appropriate and publish notice in the DEP Bulletin or deny the request.

(e) Upon completion of the minor modification, the owner and operator shall update any records and documentation affected by the change and conduct training of personnel, as appropriate.

(f) An owner and operator of an underground storage cavern system storing a substance that is regulated pursuant to the Toxic Catastrophe Prevention Act rules shall also comply with the requirements for the management of change at N.J.A.C. 7:31-4.6.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-5.2 Major modifications

(a) Prior to performing a major modification, an owner and operator of an underground storage cavern system shall submit an application in accordance with N.J.A.C. 7:1F-4.2(a) for major modification, which shall include the following information to the Department:

1. An updated feasibility study completed, in accordance with N.J.A.C. 7:1F-2.1;

2. Updated design specifications, in accordance with N.J.A.C. 7:1F-2.2(a);

3. Documentation demonstrating the competency and independence of the third party conducting an evaluation of the materials at (a)1 and 2 above, in accordance with N.J.A.C. 7:1F-2.5;

4. Updated documents required, pursuant to N.J.A.C. 7:1F-3.1(a), (b), and (c);

5. An updated operation and maintenance plan, in accordance with N.J.A.C. 7:1F-3.2; and

6. An updated emergency response plan, in accordance with N.J.A.C. 7:1F-3.4.

(b) The Department shall make an administrative review of the information required at (a) above, as follows:

1. If the information submitted is incomplete or does not contain the information required pursuant to (a) above, the Department shall, within 30 days of receipt of the information, advise the owner and operator, in writing, as to the additional information required to make the submittal administratively complete and the date by which the additional information must be received by the Department.

2. If the request contains all documents and information required pursuant to (a) above and is determined to be administratively complete, the Department, within 30 days of receipt of the request, shall so advise the applicant in writing.

(c) After the Department declares the information required pursuant to (a) above to be administratively complete, the owner and operator shall retain a third party, in accordance with N.J.A.C. 7:1F-2.5, to conduct and complete an evaluation report of the information submitted pursuant to (a) above. The third party shall submit its evaluation report directly to the Department for technical review. Within 180 days, the Department shall review the submitted information required pursuant to (a) above and the evaluation report, in accordance with the following:

1. If the information required at (a) above and the evaluation report do not contain sufficient technical information or if the information requires clarification, the Department shall so advise the owner and operator, in writing, and provide a list of deficiencies and additional or clarifying information required to make the request complete. If the requested additional or clarifying information is not submitted to the Department within 30 days of receiving the notice of deficiency, the Department may:

i. Extend the date by which the requestor must provide additional or clarifying information; or

ii. Deny the modification pursuant to N.J.A.C. 7:1F-4.7.

2. The third party shall evaluate any changes to the information submitted pursuant to (b) above, as appropriate. The third party shall submit its evaluation of the updated information to the Department.

3. If the information required pursuant to (a) above and the evaluation report contain sufficient technical information and the changes to the cavern system conform with the protections and requirements of the Act and this chapter, the Department shall prepare a draft approval of the major modification and bill the owner and operator for the Department review activity fees, in accordance with N.J.A.C. 7:1F-1.9(g).

(d) The Department shall publish, in the DEP Bulletin, notice of the receipt of the request for major modification, and shall also publish notice of each significant action or determination the Department makes regarding an application under review. The notice shall include:

1. The name of the owner and operator of the system;

2. The permit application number;

3. The location of the proposed system or facility; and

4. The date and description of the Department's action or determination.

(e) Upon publication, in the DEP Bulletin, of a notice of a draft approval of a major modification, the Department shall hold a public hearing no sooner than 15 days after publication of the notice. A comment period will be held open for a period of 30 days after the public hearing. The Department, in its discretion, may extend the comment period for an additional 30 days beyond the initial 30-day comment period.

(f) Upon completion of a comment period for a draft approval of a major modification pursuant to (e) above, the Department shall:

1. Issue an approval with any conditions it deems appropriate;

Require additional or clarifying information from the owner and operator if information received during the comment period necessitates substantial changes to the request or additional review by the Department; or

3. Deny the request pursuant to N.J.A.C. 7:1F-4.7.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-5.3 Dormancy

(a) The owner and operator of an underground storage cavern system may place the cavern into dormant status upon approval of a dormancy plan by the Department. The plan must:

1. Provide ventilation and/or other cleaning procedures after a regulated substance is withdrawn. If necessary, the system must be rendered inert to ensure the prevention of explosion or other hazardous conditions.

Provide procedures that ensure mechanical integrity is maintained.

3. Provide monitoring procedures to be followed for the duration of the dormant status, including ground water monitoring, air monitoring, and monitoring of temperature and pressure in the cavern.

4. Establish the duration of the dormancy. The owner and operator shall notify the Department, in writing, of any change in duration.

(b) The owner and operator shall submit the dormancy plan to the Department at least 30 days prior to placing the system into a dormant status.

1. Upon receipt of a dormancy plan, the Department shall conduct a review, bill the owner and operator for the Department review activity fees, in accordance with N.J.A.C. 7:1F-1.9(g), and issue an approval establishing conditions consistent with the provided plan and this chapter.

(c) The owner and operator shall not place the system into dormant status until receiving written approval of the dormancy plan.

(d) The owner and operator shall continue to renew its permit, in accordance with N.J.A.C. 7:1F-4.6, for the duration of the dormancy.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 6 DECOMMISSIONING

N.J. Admin. Code § 7:1F-6.1 Decommissioning requirements for an underground storage cavern system

(a) As a condition of any permit issued pursuant to N.J.A.C. 7:1F-4 and prior to beginning operation, the owner and operator of an underground storage cavern system shall submit a comprehensive plan for decommissioning the system for approval by the Department.

1. A decommissioning plan shall establish a schedule for the monitoring of ground water and soil vapor to be conducted annually for five years, at a minimum, following the date of decommissioning; or as otherwise established in the Department approved decommissioning plan.

2. The decommissioning plan shall include financial responsibility as required at N.J.A.C. 7:1F-6.2.

(b) The owner and operator shall notify the Department 30 days prior to the date of decommissioning.

(c) Any system that is decommissioned must be thoroughly ventilated, or otherwise cleaned and sealed, in a manner acceptable to the Department after operation has ceased.

(d) The decommissioning plan must be certified by a licensed engineer, in accordance with accepted industry standards.

(e) An owner and operator of a decommissioned system must conduct testing pursuant to N.J.A.C. 7:1F-3.1(b)1 prior to applying for a permit to initiate or resume operations at the cavern system.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-6.2 Financial responsibility

(a) As part of a decommissioning plan submitted pursuant to N.J.A.C. 7:1F-6.1, the owner or operator of an underground storage cavern system shall demonstrate and maintain a financial responsibility assurance mechanism for decommissioning activities in the amount of at least $ 1 million per permit. The amount determined necessary is based on the scope of the decommissioning plan. If the owner or operator demonstrates that an amount less than $ 1 million is sufficient to protect the environment and public health, safety, and welfare, the Department may accept evidence of financial responsibility in such lesser amount. Decommissioning activities includes any activity conducted, in accordance with the decommissioning plan and/or pursuant to N.J.A.C. 7:1F-6.1.

(b) In determining the sufficiency of the amount of financial responsibility, the Department will consider factors including, without limitation, the nature and quantity of regulated substance that is present at the system; estimated costs, with inflation considerations, to evacuate substances and residuals, confirm cavern integrity, seal wells, address ground water intrusion, long-term maintenance considerations; and other similar factors.

(c) The demonstration of sufficient financial responsibility does not limit the liability of the owner and operator.

(d) Financial responsibility may be demonstrated by any one, or by any combination, of the following:

1. Financial test of self-insurance;

2. Guarantee;

3. Insurance or risk retention group coverage;

4. Surety bond; or

5. Letter of credit.

(e) An owner or operator may use self-insurance in combination with a guarantee only if, for the purposes of meeting the requirements of the financial test under this section, the financial statements of the owner or operator are not consolidated with the financial statements of the guarantor.

(f) To pass the financial test of self-insurance, the owner or operator or guarantor must meet the criteria at (f)1 or 2 below based on the year-end financial statements of the latest completed financial reporting year. The owner and operator must maintain, onsite, a letter signed by the chief financial officer worded as specified in section A.1 of Appendix A, incorporated herein by reference. This letter shall be updated within 120 days of the close of each financial reporting year.

1. The owner or operator or guarantor must have a tangible net worth of at least $ 10 million, and the owner or operator or guarantor must:

i. Have a tangible net worth of at least 10 times the required aggregate amount at (a) above plus any other liability coverage for which the owner or operator is using a financial test to demonstrate financial responsibility to the State;

ii. Either file financial statements annually with the U.S. Securities and Exchange Commission, the Energy Information Administration, the Rural Utilities Services, or the Board of Public Utilities; or report annually the firm's tangible net worth to Dun and Bradstreet, and Dun and Bradstreet must have assigned the firm a financial strength rating of 4A or 5A; and

iii. Have year-end financial statements that, if independently audited, do not include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification;

2. The owner or operator or guarantor must have a bond rating of AAA, AA, A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's, or net working capital of at least six times the required amount at (a) above plus any other liability coverage being provided by a financial test, and the owner or operator, or the guarantor, must have:

i. A tangible net worth of at least six times the applicable amount at (a) above;

ii. U.S. assets that are at least 90 percent of total assets or at least six times the required amount at (a) above plus any other liability coverage being provided by a financial test; and

iii. Fiscal year-end financial statements filed with the U.S. Securities and Exchange Commission, the Energy Information Administration, Rural Utilities Services, or the New Jersey Board of Public Utilities, or a special report by an independent certified public accountant stating that the data specified in the letter from the chief financial officer have been compared to the data in the latest financial statements and that no matters have come to his or her attention that cause him or her to believe that the data should be adjusted.

(g) If an owner or operator, or guarantor, using the financial test to provide financial responsibility finds that it no longer meets the requirements of the financial test based on the year-end financial statements, the owner or operator must obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared.

(h) The Department may require reports of financial condition at any time from the owner or operator, or guarantor. If the Department finds, on the basis of such reports or other information, that the owner or operator, or guarantor, no longer meets the financial test requirements at (f) above, the owner or operator shall obtain alternate coverage within 30 days after notification of such a finding.

(i) If the owner or operator fails to obtain alternate coverage within 150 days of finding that it no longer meets the requirements of the financial test based on the year-end financial statements, or within 30 days of notification by the Department that it no longer meets the requirements of the financial test, the owner or operator shall notify the Department of such failure within 10 days.

(j) To demonstrate financial responsibility through a guarantee:

1. Within 120 days of the close of each financial reporting year, the guarantor must demonstrate that it meets the financial test criteria set forth at (f) above by completing the letter from the chief financial officer as specified in section A.1 of the Appendix and must deliver the letter to the owner and operator and the Department. If the guarantor fails to meet the requirements at (f) above, within 120 days of the end of the financial reporting year the guarantor must send by certified mail, before cancellation or nonrenewal of the guarantee, notice to the owner and operator and the Department. If the Department notifies the guarantor that he or she no longer meet the requirements at (f) above, the guarantor must notify the owner and operator within 10 days of receiving such notification from the Department. In both cases, the guarantee will be deemed as terminated, no less than 120 days after the date the owner and operator receives the notification, or 120 days after the date the Department receives the notification, whichever is later, as evidenced by the return receipt. The owner or operator must obtain alternate coverage within 30 days; and

2. The guarantee must be worded as specified in section A.2 of the Appendix, and a copy of the guarantee maintained at the facility at all times.

(k) To demonstrate financial responsibility through liability insurance:

1. Such insurance must be obtained from a qualified insurer or risk retention group. It may be in the form of a separate insurance policy or an endorsement to an existing policy;

2. An existing insurance policy must be amended by an endorsement worded as specified in section A.3(1) of the Appendix or a separate insurance policy must be evidenced by a certificate of insurance worded as specified in section A.3(2) of the Appendix. A copy of this endorsement or certificate must be maintained at the facility at all times;

3. The provisions addressing cancellation or any other termination of the liability insurance by the insurer or group, except for nonpayment of premium or material misrepresentation by the insured, will be effective only upon written notice and only after the expiration of 60 days after the date on which the insured receives the written notice; or 60 days after the date on which the Department receives the written notice, whichever is later. Cancellation for nonpayment of premium or material misrepresentation by the insured will be effective only upon written notice and only after the expiration of a minimum of 10 days after the date on which the insured receives the written notice; or 10 days after the date on which the Department receives the written notice, whichever is later; and

4. Within 60 days of receipt of a notice of cancellation or other termination, the owner or operator shall provide alternative financial assurance, as specified in this section.

(l) To demonstrate financial responsibility through a surety bond:

1. The surety company issuing the bond must be among those listed as acceptable sureties on Federal bonds in the latest Circular 570 of the U.S. Department of the Treasury;

2. The surety bond must be worded as specified in section A.4 of the Appendix, and a copy of the surety bond maintained at the facility at all times;

3. Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the penal sums;

4. The owner or operator who uses a surety bond to meet the requirements at (a) above must establish a standby trust fund when the surety bond is acquired. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund, in accordance with instructions from the Department;

5. The surety(ies) may cancel the bond by sending written notice of cancellation by certified mail to the principal and the Department; provided, however, that the cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by the principal or the date of receipt of the notice of cancellation by the Department, whichever is later, as evidenced by the return receipt; and

6. Within 60 days of receipt of a notice of cancellation or other termination, the owner or operator shall provide alternative financial assurance, as specified in this section.

(m) To demonstrate financial responsibility through a letter of credit:

1. The issuing agency must be an entity that has the authority to issue letters of credit in this State and whose letter-of-credit operations are regulated and examined by a State agency;

2. The letter of credit must be worded as specified in section A.5 of the Appendix, and a copy of the letter of credit maintained at the facility at all times;

3. The owner or operator who uses a letter of credit to meet the requirements at (a) above must establish a standby trust fund when the letter of credit is acquired. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Department;

4. The letter of credit must be irrevocable with a term specified by the issuing institution and must provide that credit be automatically renewed for the same term as the original term, unless, at least 120 days before the current expiration date, the issuing institution notifies the owner or operator and the Department, by certified mail, of its decision not to renew the letter of credit. Under the terms of the letter of credit, the 120 days will begin on the date when the owner and operator receives the notice or on the date when the Department receives the notice, whichever is later, as evidenced by the return receipt; and

5. Within 60 days of receipt of a notice of cancellation or other termination, the owner and operator shall provide alternative financial assurance as specified in this section.

(n) Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code:

1. Naming an owner or operator as debtor, the owner and operator shall notify the Department by certified mail of such commencement; or

2. Naming the provider of financial assurance as debtor, the provider shall notify the owner or operator by certified mail of such commencement, and the owner and operator shall then notify the Department.

(o) An owner and operator will be deemed to be without the required demonstration of financial responsibility in the event of commencement of bankruptcy or other incapacity of his or her provider of financial assurance. Within 30 days after receiving notice of such an event, the owner or operator shall submit to the Department an alternate demonstration of financial responsibility.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 7 VIOLATIONS, REMEDIES, AND ADJUDICATORY HEARING PROCEDURES

N.J. Admin. Code § 7:1F-7.1 Violations

(a) Upon a finding that the owner or operator of an underground storage cavern system has failed to comply with any requirement of the Act or this chapter, the Department may:

1. Deny, suspend, or revoke the issuance of any approval or permit;

2. Order compliance with any violation of the Act, regulatory provision, or permit condition;

3. Commence a civil action in the Superior Court for a restraining order and an injunction against any violation of the Act, regulatory provision, or condition of a Department approval or permit; and/or

4. Pursue any other remedy available by law.

(b) Any person who fails to comply or otherwise violates N.J.S.A. 58:10-35.1, 35.2, 35.3, or 35.4, any rule or regulation adopted pursuant to the Act, or any permit issued pursuant to the Act shall be guilty of a crime of the fourth degree.

(c) The Department has the power, as enumerated at N.J.S.A. 13:1D-9, and consistent with constitutional requirements, to enter and inspect any property, facility, building, premises, site, or place for the purpose of investigating an actual or suspected source of pollution of the environment and inspections, collecting samples, copying or photocopying documents or records, and for otherwise ascertaining compliance or noncompliance with any laws, permits, orders, codes, rules, and regulations of the Department.

1. Each applicant or permittee shall provide, upon request of the Department, any information required to determine compliance with the provisions of the Act, this chapter, or any permit or order issued pursuant thereto.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-7.2 Scope

(a) This subchapter establishes procedures governing the Department's issuance of civil administrative orders and commencement of a civil action for violation(s) of any provisions of the Act, this chapter, or any order, permit, or operating authority issued pursuant thereto. This subchapter shall also govern the procedures for requesting an adjudicatory hearing on an administrative order, or a Department decision on an application for an approval or permit, as provided at N.J.A.C. 7:1F-7.4.

(b) Nothing in this subchapter is intended to affect the Department's authority to revoke or suspend any permit, or other operating authority issued under the Act. Specifically, the Department may revoke or suspend a permit, or other operating authority, without regard to whether an administrative order has been or will be issued pursuant to this subchapter or any other Department statute.

(c) Each violation of any provision of the Act or this chapter, or violation of any administrative order, permit, or other operating authority promulgated or issued pursuant thereto shall constitute a separate and distinct offense.

(d) Each day during which a violation continues shall constitute an additional, separate, and distinct offense.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-7.3 Procedures for issuance of administrative orders

(a) Whenever, on the basis of available information, the Department finds a person in violation of any provision of the Act, or any rule promulgated, or any administrative order, permit, or other operating authority issued pursuant to the Act, the Department may issue an administrative order:

1. Specifying each provision of the applicable Act, rule, plan, order, or permit that has been, or is being, violated;

2. Citing the action that constituted the violation;

3. Requiring compliance with the provision, or provisions, violated; and

4. Providing notice of the right to a hearing on the matters contained in the order.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-7.4 Adjudicatory hearing requests and procedures

(a) A person may request a hearing to contest an administrative order issued pursuant to N.J.A.C. 7:1F-7.3, a certified notice denying a confidentiality claim pursuant to N.J.A.C. 7:1F-8, or a decision made by the Department to:

1. Deny an application, or any part thereof, for an approval or permit, for a modification thereof, or for a renewal thereof;

2. Impose any condition on its approval or permit which the applicant or permittee finds objectionable; or

3. Revoke or suspend a previously issued approval or permit.

(b) Within 20 calendar days after receiving the document for which a hearing is sought, the person requesting a hearing shall send a completed Adjudicatory Hearing Request Checklist and a written request for a hearing to:

1. New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

Mail Code 401-07A

PO Box 420

401 East State Street

Trenton, New Jersey 08625-420

2. New Jersey Department of Environmental Protection

Bureau of Release Prevention

Mail Code 22-03D

401 East State Street

PO Box 420

Trenton, New Jersey 08625-0420

(c) The person requesting a hearing shall include with the completed Adjudicatory Hearing Request Checklist the following information:

1. The name, address, telephone number, and email address of:

i. The person the Department named in the document for which the hearing is sought;

ii. A contact person or authorized representative, if the person the Department named in the document is not an individual; and

iii. The person's attorney, if any.

2. The date the person received the document for which a hearing is sought;

3. A copy of the document for which a hearing is sought, pursuant to (a) above;

4. An admission, a denial, or an averment of insufficient knowledge or information of the findings listed in the document being contested, as follows:

i. If the person is without knowledge or information sufficient to form a belief as to the truth of a specific finding, the person shall so state and this shall have the effect of a denial;

ii. If a person intends to deny any finding or portion of the finding in the document:

(1) The person shall identify the finding or portion of the finding that is denied. A general denial of some or all of the findings shall have the effect of an admission of each finding generally denied;

(2) For each finding or portion of a finding the person denies, the person shall explain the factual and legal basis of the denial. Any failure to provide a factual and legal basis for a denial shall have the effect of an admission of the finding; and

(3) The person shall ensure that each denial fairly meets the substance of the finding or portion of the finding denied. A denial that does not meet the substance of the finding denied shall have the effect of an admission of the finding; and

iii. If a person fails to either admit or deny any specific finding or portion of a finding, this shall have the effect of an admission of that finding.

5. A list of all factual and legal issues that the person is contesting, with each defense position stated in short and plain terms;

6. Documents or information supporting the request for a hearing, and specific reference to, or copies of, other written documents relied on to support the request;

7. An estimate of the time required for the hearing in days and/or hours; and

8. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(d) If the Department does not receive the request for a hearing within the time prescribed at (b) above, or if the request does not include the information required at (c) above, the Department shall deny the request for a hearing.

(e) An adjudicatory hearing shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(f) Nothing in this section shall be construed to provide a right to an adjudicatory hearing in contravention of N.J.S.A. 52:14B-3.1, 3.2, or 3.3.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-7.5 Civil action

Whenever, on the basis of available information, the Department finds a person in violation of the Act, or any rule promulgated, or any administrative order, permit, or other operating authority issued pursuant to the Act and this chapter, the Department may institute a civil action in Superior Court for appropriate relief.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Subchapter 8 CONFIDENTIALITY

N.J. Admin. Code § 7:1F-8.1 Scope and applicability

(a) This subchapter constitutes the rules for the assertion, substantiation, review, and appeal of confidentiality claims and establishes the principles, guidelines, and procedures governing the internal management and disclosure of confidential information provided to the Department pursuant to this chapter.

(b) An owner and operator who asserts a confidentiality claim shall follow the procedures set forth in this subchapter.

(c) The Department, its employees, and its agents shall strictly adhere to the procedures established by this subchapter for maintaining the confidentiality and security of confidential information and for the disclosure of confidential information.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.2 General provisions

(a) All information collected, or originated, by the Department in connection with the Act or this chapter shall be made available to the public, in accordance with N.J.S.A. 47:1A-1 et seq., except as otherwise provided in this subchapter.

(b) The Department shall protect from disclosure to the public any security information and any confidential information obtained pursuant to the Act or this chapter.

(c) Confidential information supplied to the Department will be disclosed only to the employees or agents of the Department and only on a need-to-know basis for the purposes of carrying out or enforcing the provisions of the Act or this chapter, or for use in civil or criminal proceedings, if so ordered by a court.

(d) An owner and operator may file a claim with the Department to withhold from public disclosure confidential information required to be submitted to the Department at any time such information is required to be submitted to the Department. All such claims and any required substantiation shall be submitted, in writing, on forms provided by the Department, in accordance with N.J.A.C. 7:1F-8.4. If the space provided for responses on Department forms is not sufficient, additional pages, properly referenced, may be attached to the required forms to provide complete responses. All forms can be obtained from the address provided at N.J.A.C. 7:1F-1.10(a). The owner and operator shall initially submit, or disclose, only the confidential copy of documents containing confidential information to the Department. The public copy that shall have deleted all confidential information and be available for public disclosure shall be submitted to the Department only upon the Department's receipt of a request for the public disclosure of the information or if the Department otherwise decides to determine whether the information is entitled to confidential treatment. The confidential copy shall be for the Department's records and shall include all necessary information.

(e) Any confidential information supplied to the Department shall be sent by certified mail, return receipt requested, by personal delivery, or by other means that provides verification of delivery, the date of delivery, and the name of the person who receives the document in the Department.

(f) No employees or agents of the Department are authorized to sign a confidentiality agreement or other non-disclosure agreement, and any such agreement so executed will be of no force or effect as to the Department.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.3 Exclusions from confidential information

(a) Information required to be submitted or disclosed to the Department pursuant to the Act or this chapter that meets the following criteria shall not be considered as confidential information, regardless of any claim or petition, either pending or approved:

1. The name of the owner and operator, address, and the name and location of the underground storage cavern facility(ies);

2. The chemical or common name, Chemical Abstract Services number, United States Department of Transportation identification number, regulated substance name, or other identifying name for the substance;

3. Information required to be publicly disclosed pursuant to any other Federal or State law or regulation;

4. Information required to be publicly disclosed pursuant to a court order or ruling;

5. Information that is patented;

6. Information that is published or available through any public source;

7. Information that is known to persons outside the owner and operator's business, who are not bound by a confidentiality agreement or other duty to keep the information confidential;

8. Information that is determined not to be confidential information pursuant to this chapter;

9. Information required to be included in the facility emergency response plan pursuant to N.J.A.C. 7:1F-3.4; and

10. Information submitted or disclosed to the Department by an owner and operator that is not marked, or that does not display in bold type or stamp the word, "CONFIDENTIAL" on the top of each page.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.4 Confidentiality claims

(a) Any owner and operator required to submit or disclose to the Department any information pursuant to the Act or this chapter that, in the owner and operator's opinion, constitutes confidential information, may assert a confidentiality claim by following the procedures set forth in this section.

(b) Any owner and operator asserting a confidentiality claim shall do so, in writing, on a form provided by the Department at the time the owner and operator provides or discloses confidential information to the Department.

(c) Any owner and operator submitting any information to the Department and asserting a confidentiality claim covering any information contained therein shall submit a confidential copy of the document to the Department along with a properly executed confidentiality claim form. The confidential copy shall contain all the information required by the Act or this chapter including any information that the claimant requests to be treated as confidential. A second copy, the public copy, which shall be identical to the confidential copy, except that it shall contain no information that the claimant requests to be treated as confidential, shall be submitted to the Department, only if the Department receives a request for public disclosure of the information or if the Department decides to determine whether the information is entitled to confidential treatment. The public copy can be a photocopy of the confidential copy, with the allegedly confidential information blacked out. When a public copy is required, the Department shall notify the claimant by certified mail, return receipt requested, that it must submit the public copy and the required fee, along with the confidentiality claim substantiation form, as required at N.J.A.C. 7:1F-8.5(d), to the Department within 30 days. If the public copy, required fee, or the confidentiality claim substantiation form, is not received by the Department within the 30-day time limit, the Department shall send a letter by certified mail, return receipt requested, notifying the claimant that its claim will be considered abandoned and the confidential copy shall be treated as public information, unless the public copy, required fee, or substantiation form is received by the Department within 10 days of receipt of the Department's notice.

(d) The top of each page of the confidential copy containing any information which the claimant desires to be treated as confidential shall display the heading "CONFIDENTIAL" in bold type, or stamp.

(e) All parts of the text of the confidential copy that the claimant requests to be treated as confidential shall be underscored or highlighted in a clearly identifiable manner. This manner of marking confidential information shall be such that both the information claimed as confidential and the underscoring or highlighting is reproducible on photocopying machines. Information not so marked will be treated as public and may be disclosed without notice to the claimant.

(f) The confidential copy, containing the information that the claimant alleges to be entitled to confidential treatment, shall be sealed in an envelope that shall display the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope, together with the confidentiality claim form (which may or may not be enclosed in a separate envelope, at the option of the claimant), shall be enclosed in another envelope for transmittal to the Department, at the address provided at N.J.A.C. 7:1F-1.10. The outer envelope shall bear no marking indicating the confidential nature of its contents.

(g) To ensure proper delivery, the complete package should be sent by certified mail, return receipt requested, by personal delivery, or by other means that will provide verification of delivery, the date of delivery, and the name of the person who receives the document at the Department. Ordinary mail may be used, but the Department will assume no responsibility for packages until they are actually received at the address provided at N.J.A.C. 7:1F-1.10.

(h) The certification on the bottom of the confidentiality claim form shall contain the signature and certification specified at N.J.A.C. 7:1F-1.8. Any substantiation form that the claimant submits to support a confidentiality claim shall also contain the signature and certification as specified at N.J.A.C. 7:1F-1.8.

(i) For information that, in the owner and operator's opinion, constitutes confidential information and which is merely disclosed to the Department during an inspection, only one copy, the confidential copy, need be revealed to the Department at that time. A properly executed confidentiality claim form for the information disclosed shall be submitted to the Department at the time of such disclosure. The second copy, the public copy, will be submitted to the Department only if it becomes necessary for the Department to make a confidentiality determination concerning the information claimed as confidential that is disclosed during an inspection. Any information disclosed to the Department during an inspection that is not properly marked and identified as confidential information will not be considered confidential or be treated as such by the Department.

(j) If upon receipt of the public copy the Department becomes aware of an apparent error or omission on the part of a claimant in failing to delete information from the public copy that it identified as being confidential by underscoring or highlighting on the confidential copy, the Department shall send a letter by certified mail, return receipt requested, notifying the claimant of the apparent error or omission. The letter shall advise the claimant that the claim as to all information not deleted on the public copy will be considered abandoned and the public copy will be treated as public information, unless the Department receives a corrected public copy within 10 days of receipt of the Department's notice.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.5 Determination of confidentiality claims

(a) Information for which a confidentiality claim has been asserted will be treated by the Department as entitled to confidential treatment, unless the Department determines that the information is not entitled to confidential treatment as provided in this section.

(b) The Department shall act upon a confidentiality claim and determine whether information is, or is not, entitled to confidential treatment, whenever the Department:

1. Receives a request pursuant to N.J.S.A. 47:1A-1 et seq., to inspect or copy such information;

2. Decides to determine whether information in its possession is entitled to confidential treatment; or

3. Desires for any reason in the public interest to disclose the information to persons not authorized by this subchapter to have access to confidential information.

(c) Whenever the Department is required to, or decides to, make a determination whether information is entitled to confidential treatment, the Department shall first make a determination that the information claimed as confidential has not been the subject of a prior confidentiality determination by the Department concerning the same facility, or if it has, that the prior determination upheld the owner's or operator's claim. If such a prior determination held that the confidentiality claim was invalid, the Department shall notify the claimant by registered mail, return receipt requested, that the information claimed as confidential is the subject of a prior determination concerning the confidentiality of the same information in which it was held that such claim was invalid and the Department will treat the information as public information.

(d) If the Department determines that the information is not the subject of a prior confidentiality determination, the Department shall notify the claimant by certified mail, return receipt requested, of the claimant's right to submit substantiation in support of its claim that the information is entitled to be treated as confidential. The substantiation shall be submitted, in writing, on a form provided by the Department, shall be accompanied by the public copy of the information and the fee set forth at N.J.A.C. 7:1F-1.9(h) for review of the substantiation, and shall be received by the Department within 30 days of receipt of the Department's notice. The substantiation shall include, but need not be limited to, the following:

1. The reasons why the information needs to be treated as confidential;

2. The extent to which disclosure of the information would result in damage to the claimant, including a description of the damage, and an explanation of the relationship between disclosure and the damage;

3. The period of time for which confidential treatment is desired by the claimant (for example, until a certain date, until the occurrence of a specified event, or permanently);

4. The measures taken by the claimant to guard against undesired disclosure of the information to others, and claimant's intention to continue such measures and any new measures the claimant intends to implement in the future to protect the information;

5. The extent to which the information has been published, or otherwise disclosed to others, including employees, and the precautions taken in connection therewith;

6. Prior confidentiality determinations concerning the information made by the Department, another agency, or a court, and a copy of such determination;

7. Whether the information is patented, and, if so, identification of the patent and an explanation why the patent:

i. Does not connect the claimant with the confidential information; and

ii. Does not protect the claimant from competitive harm.

8. The ease or difficulty with which the information could be discovered through reverse engineering and an estimate for the cost;

9. Whether any Federal or State law, rule, or regulation requires the public disclosure of the information, and a copy of the law, rule, or regulation; and

10. For security information, a description of the adverse impact that disclosure would have on either the facility's security or its operations.

(e) Failure of a claimant to furnish the public copy and the confidentiality claim substantiation form or to pay the required fee within 10 days of receipt of the Department's second notice provided, in accordance with N.J.A.C. 7:1F-8.4(c), waives the claimant's confidentiality claim and the information will be treated as public information.

(f) The owner and operator may assert a confidentiality claim for any confidential information contained in its substantiation form submitted to the Department pursuant to (d) above. To claim this material as confidential, the claimant shall clearly designate those portions of the substantiation form claimed as confidential, in accordance with the procedures provided at N.J.A.C. 7:1F-8.4(d) and (e). Information not properly marked will be treated as public and may be disclosed without notice to the claimant.

1. The claimant shall initially submit, to the Department, only the confidential copy of any substantiation form that contains confidential information prepared, in accordance with the provisions specified at N.J.A.C. 7:1F-8.4(c). The certification on the substantiation form shall be executed as provided at N.J.A.C. 7:1F-1.8.

(g) The substantiation form shall be enclosed in envelopes as specified at N.J.A.C. 7:1F-8.4(f) and be forwarded to the address provided therein. To ensure proper delivery, the methods specified at N.J.A.C. 7:1F-8.4(g) shall be followed.

(h) The Department may extend the time limit for submitting substantiation pursuant to (d) above to not more than 60 days upon receipt of a request, in writing, for good cause shown.

(i) After receiving the substantiation, the Department shall make a final confidentiality determination, in accordance with the criteria set forth at (j) below.

1. If, after review, the Department determines that the information is not entitled to confidential treatment, the Department shall so notify the claimant by certified mail, return receipt requested. The notice shall state the basis for the determination and shall advise the claimant of its right to request an adjudicatory hearing in accordance with the procedures specified at N.J.A.C. 7:1F-7.4(b). The notice shall also advise the claimant that the Department shall make the information available to the public on the 30th day following receipt by the claimant of the written notice, unless the Department has received a timely written request for an adjudicatory hearing to contest such decision.

2. If, after review, the determination is made that information is entitled to confidential treatment, the information shall not be disclosed, except as otherwise provided by this subchapter. The claimant shall be notified of the Department's determination by regular mail. The notice shall state the basis for the determination and that it constitutes final agency action.

(j) If the claimant satisfies each of the substantive criteria at (j)1 through 10 below, the Department shall determine that the information for which a confidentiality claim has been asserted shall be treated as confidential:

1. The claimant has established a reasonable basis for treating the information as confidential;

2. Except for security information (see (j)10 below), the claimant has shown that disclosure of the information would be likely to cause damage to its competitive position;

3. The claimant has asserted a confidentiality claim that has not expired by its terms or been waived or withdrawn;

4. The claimant has shown that reasonable measures have been taken to protect the confidentiality of the information and that the claimant intends to continue to take such measures;

5. The information is not, and has not been, available or otherwise disclosed to persons other than employees, except under a confidentiality or non-disclosure agreement, or in any way without the claimant's consent (other than by subpoena or by discovery based on a showing of special need in a judicial or quasi-judicial proceeding, as long as the information has not become available to a person not involved in the proceeding);

6. Any prior confidentiality determinations concerning the information made by the Department, another agency, or a court, approved or upheld the registrant's confidentiality claim;

7. The information is not the subject of a patent, or if patented, the patent does not connect the claimant with the confidential information and does not protect the claimant from competitive harm;

8. The confidential information is not readily discoverable through reverse engineering;

9. No law, rule, or regulation requires public disclosure of the information; and

10. For security information, the claimant has shown that disclosure of the information would likely have an adverse effect on the security of the facility or its operations.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.6 Maintaining the confidentiality and security of confidential information

(a) Until such time as a final confidentiality determination has been made, access to any information for which a confidentiality claim has been made will be limited to only those Department employees and agents whose activities necessitate such access, and as provided at N.J.A.C. 7:1F-8.9.

(b) No disclosure of information for which a confidentiality claim has been asserted shall be made to any other persons, except as provided in this subchapter.

(c) Nothing in this section shall be construed as prohibiting the incorporation of confidential information into cumulations of data subject to disclosure as public records, provided that such disclosure is not in a form that would foreseeably allow persons, not otherwise having knowledge of such confidential information, to deduce from it the confidential information or the identity of the petitioner who supplied it to the Department.

(d) Only those Department employees who are designated as records custodians, in accordance with (l) below, shall open any envelope that is marked "CONFIDENTIAL" and is addressed as provided at N.J.A.C. 7:1F-8.4(f).

(e) All submissions entitled to confidential treatment as determined at N.J.A.C. 7:1F-8.5 shall be stored by the Department or its agents only in locked cabinets.

(f) Any record made or maintained by Department employees or agents that contains confidential information shall be treated as confidential, in accordance with the provisions of this section.

(g) Confidential information shall not be publicly disclosed by the Department and shall not be communicated over telecommunications networks, including, but not limited to, telephones, computers connected by modems, or electronic mail systems.

(h) Any document that contains confidential information and is transmitted by the Department to the owner or operator or to any authorized person, shall be sent by certified mail or by other means that requires a verification of receipt, the date of receipt, and the name of the person who receives the document.

(i) The Department's contact regarding confidential information shall be the owner and operator's authorized person.

(j) Any document that contains confidential information and is prepared by the Department for the owner and operator shall display the word "CONFIDENTIAL" in bold type or stamp on the top of each page. The envelope containing this document shall be addressed to the owner and operator's authorized person and shall display the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope shall be enclosed in a plain envelope addressed for mailing.

(k) No persons other than the Commissioner's designated employees, or designated agents, or an administrative law judge conducting a hearing on the confidentiality of information pursuant to N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq., shall have access to confidential information and such access shall be on a need-to-know basis only. Said designated representatives of the Commissioner shall be employees or agents of the Department and such designation shall be made in writing.

(l) The Commissioner shall designate employees to act as records custodians of all confidential information gathered pursuant to the Act or this chapter. These designated employees shall be responsible for acknowledging and recording the receipt of confidential information from an owner and operator, for tracking and recording all confidential information given to Department-designated employees or agents or an administrative law judge, for maintaining and upkeeping the confidential information file and storage area and for establishing any other methods deemed appropriate to protect the confidentiality of information through internal procedures or guidelines.

(m) Any confidential information added to a computerized database shall only be added to computers that are:

1. Capable of being locked during periods of non-use by means of a lock and key mechanism, or by the use of passwords or levels of security clearances, or by other means that restrict access only to authorized Department personnel;

2. Are not tied to another computer system by means of communications network; and

3. Are kept within an office capable of being locked when not being used by an authorized person.

(n) Any confidential information that has been submitted to the Department and has become obsolete or is no longer needed by the Department for the implementation of the Act or this chapter shall be returned to the owner and operator.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.7 Disclosure of confidential information

(a) The Department may disclose confidential information to a person other than a Department employee, agent, or administrative law judge only as provided in this section.

(b) The Department may disclose confidential information to any other governmental agency, if:

1. The Department receives a written request for disclosure of the information from a duly authorized officer or employee of the other agency;

2. The request sets forth the official purpose for which the information is needed;

3. The Department notifies the other agency of the Department's determination that the information is entitled to confidential treatment, or of any unresolved confidentiality claim covering the information;

4. The other governmental agency has first furnished to the Department a written formal legal opinion from the agency's chief legal officer or counsel stating that, under applicable law, the agency has the authority to compel the person who submitted the information to the Department to disclose such information to the other agency;

5. The other agency agrees not to disclose the information further, unless;

i. The other agency has statutory authority both to compel production of the information and to make the proposed disclosure; or

ii. The other agency has obtained the consent of the affected owner and operator of the proposed disclosure; and

The other agency has adopted rules or operates under statutory authority that will allow it to preserve confidential information from unauthorized disclosure.

(c) The Department may disclose confidential information to an agent of the Department and to an agent's employees when the agent is assisting in implementing the Act, its activities necessitate such access, and the requirements at (c)1 below have been satisfied. Any such disclosure of confidential information shall be restricted to a person approved, in writing, by the Department.

1. An agent shall not receive any confidential information, unless:

i. It has submitted a plan to the Department that describes measures for adequately protecting confidential information from unauthorized disclosure, and such plan has been approved by the Department;

ii. It has provided written documentation demonstrating, to the satisfaction of the Department, that it maintains professional liability insurance and comprehensive general liability insurance in amounts to be set by the Department; and

iii. In addition to the requirement at (c)2 below, it has signed an agreement developed by the Department, protecting confidential information from unauthorized disclosure. The agreement shall include a provision whereby the agent assumes liability for any damages to the registrant resulting from the intentional or negligent release of confidential information by the agent and its employees.

2. Any person granted access to confidential information pursuant to this section shall sign an agreement developed by the Department protecting the confidentiality of the information prior to receipt of the information.

3. Any person who receives confidential information pursuant to this section shall take appropriate measures to protect the information from unauthorized disclosure that shall include, but not be limited to:

i. Keeping the information confidential from unauthorized persons;

ii. Keeping any records containing confidential information in a locked file cabinet or safe, when not in use;

iii. Using the information only for the use approved by the Department;

iv. Not reproducing the confidential information; and

v. Returning all material on which the confidential information has been recorded to the Department within 30 days after finishing using the information.

(d) Except as otherwise provided at (e) below, the Department shall notify, in writing, the owner and operator who supplied the confidential information of:

1. Its disclosure to another agency or agent of the Department;

2. The date on which disclosure was made;

3. The name of the agency or agent to which it was disclosed; and

4. A description of the information disclosed.

(e) The Department may disclose any confidential information to any other person if it has obtained the written consent of the owner's or operator's authorized person to such disclosure.

1. The giving of consent by an owner and operator to disclose shall not be deemed to waive a confidentiality claim with regard to further disclosures, unless the authorized disclosure is of such nature as to make the disclosed information accessible to the general public.

(f) The Department may use confidential information in a civil or criminal proceeding, if permitted by a court.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.8 Wrongful access or disclosure

(a) A person shall not disclose, seek access to, obtain, or have possession of any confidential information obtained pursuant to the Act or this chapter, except as authorized by this subchapter.

(b) Every Department employee or agent who has custody or possession of confidential information shall take appropriate measures to safeguard such information and to protect against its improper disclosure.

(c) A Department employee or agent shall not disclose, or use for his or her private gain or advantage, any information that came into his or her possession, or to which he or she gained access, by virtue of his or her official position of employment or contractual relationship with the Department.

(d) If the Department finds that any person has violated the provisions of this subchapter, it may:

1. Commence a civil action in Superior Court for a restraining order and an injunction barring that person from further disclosing confidential information; and

2. Pursue any other remedy available by law.

(e) In addition to any other remedy that may be sought by the Department, violation of this subchapter by a Department employee shall constitute grounds for dismissal, suspension, fine, or other adverse personnel action.

(f) Disclosure by an agent in violation of this subchapter or the contractual provisions described at N.J.A.C. 7:1F-8.9(c) shall constitute grounds for debarment or suspension as provided at N.J.A.C. 7:1-5, Debarment, Suspension and Disqualification from Department Contracting, in addition to whatever other remedies may be available to the Department at equity or law.

(g) Use of any of the remedies specified under this section shall not preclude the use of any other remedy.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

N.J. Admin. Code § 7:1F-8.9 Use of confidential information in rulemaking

Notwithstanding any other provisions of this subchapter, the Department may use confidential information in the development of program rules and in the preparation of enforcement documents and during enforcement proceedings.

History

• Adopted by 55 N.J.R. 905(a), effective 5/1/2023

Chapter 1G WORKER AND COMMUNITY RIGHT TO KNOW REGULATIONS

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1G-1.1 Scope

Unless otherwise provided by rule or statute, this chapter shall constitute the rules of the Department implementing the Worker and Community Right to Know Act, P.L. 1983 c.315, N.J.S.A. 34:5A-1 et seq.

N.J. Admin. Code § 7:1G-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Act" means the Worker and Community Right to Know Act, P.L. 1983 c.315, N.J.S.A. 34:5A-1 et seq.

"Administrative order" means any and all orders issued or entered into by the Department including, but not limited, to administrative consent orders.

"Chemical Abstracts Service Registry Number" or "C.A.S. number" means the unique identification number assigned by the Chemical Abstracts Service to chemicals.

"Chemical name" means the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry or the Chemical Abstracts Service rules of nomenclature.

"Common name" means any designation or identification such as a code name, code number, trade name, brand name or generic name used to identify a chemical other than by its chemical name.

"Community Right to Know Survey" means the reporting form which combines the chemical inventory reporting requirements of the Environmental Survey, formerly Part I, and the Superfund Amendments and Reauthorization Act, Section 312.

"Compound" means a substance composed of two or more elements chemically united in a fixed proportion.

"Container" means a receptacle used to hold a liquid, solid, or gaseous substance, including, but not limited to, bottles, pipelines, bags, barrels, boxes, cans, cylinders, drums, cartons, vessels, vats, and stationary or mobile storage tanks. "Container" shall not include process containers.

"Department" means the New Jersey Department of Environmental Protection, however, for the purpose of N.J.A.C. 7:1G-6, it shall mean both the New Jersey Department of Environmental Protection and the New Jersey Department of Health, unless otherwise indicated.

"Designated county lead agency" means a health agency or office of emergency management designated by the county clerk to be responsible for conducting all county health department activities required by the Act in the county.

"Employee" means a person who works at a facility owned or operated by an employer as defined in this section on a paid or unpaid basis and who may or may not be directly paid by the employer who owns or operates the facility. It is not intended that this term encompass independent contractors.

"Employer" means any person or corporation, regardless of whether he pays employees, in the State, engaged in business operations having the following United States North American Industry Classification System (NAICS) codes, dated and published in 2002 by the Executive Office of the President, Office of Management and Budget, ISBN 0-934213-87-9 (NTIS PB2002-502024), subject to the specified exceptions and limitations:

| Subsector Code or Industry Code | Description | Exceptions and/or Limitations | | --- | --- | --- | | 11 | Agriculture, | | | Forestry, Fishing and | | | | Hunting | | | | 111998 | All Other | Limited to facilities that | | Miscellaneous Crop | reduce maple sap to maple | | | Farming | syrup | | | 113310 | Logging | No exceptions or | | limitations | | | | 21 | Mining | | | 211112 | Natural Gas Liquid | Limited to facilities that | | Extraction | recover sulfur from natural | | | gas | | | | 212324 | Kaolin and Ball Clay | Limited to facilities | | Mining | operating without a mine or | | | quarry and that are primarily | | | | engaged in beneficiating | | | | kaolin and clay | | | | 212325 | Clay and Ceramic and | Limited to facilities | | Refractory Minerals | operating without a mine or | | | Mining | quarry and that are primarily | | | engaged in beneficiating | | | | clay, ceramic and refractory | | | | minerals | | | | 212393 | Other Chemical and | Limited to facilities | | Fertilizer Mineral | operating without a mine or | | | Mining | quarry and that are primarily | | | engaged in beneficiating | | | | chemical or fertilizer | | | | mineral raw materials | | | | 212399 | All Other Nonmetallic | Limited to facilities | | Mineral Mining | operating without a mine or | | | quarry and that are primarily | | | | engaged in beneficiating | | | | nonmetallic minerals | | | | 22 | Utilities | No exceptions or | | limitations | | | | 31-33 | Manufacturing | Except facilities engaged | | in wholesale distribution of: | | | | Piece goods, notions and | | | | other dry goods (broadwoven | | | | converters, piece goods | | | | converters); and Meat and | | | | meat products (boxed beef); | | | | groceries and related | | | | products, not elsewhere | | | | classified (processed bottled | | | | water manufacturing); and | | | | except Candy, nut and | | | | confectionery stores | | | | (chocolate candy stores | | | | preparing on premises, | | | | nonchocolate candy stores, | | | | preparing on premises); | | | | Retail bakeries (bread, cake | | | | and related products baked | | | | and sold on premises); | | | | Miscellaneous apparel and | | | | accessory stores (custom | | | | tailors, custom dressmakers); | | | | Furniture stores (custom | | | | wood cabinets, custom made | | | | upholstered household | | | | furniture, custom made | | | | nonupholstered wood household | | | | furniture); Drapery, curtain | | | | and upholstery stores (custom | | | | drapes, custom slipcovers); | | | | Miscellaneous home furnishing | | | | stores (manufacturing and | | | | selling pottery on site); | | | | Optical goods stores (optical | | | | laboratories grinding lenses | | | | to prescription); | | | | Miscellaneous retail stores | | | | (manufacture of orthopedic | | | | devices to prescription in a | | | | retail environment); and | | | | Except facilities engaged in | | | | : | the following services | | | Photocopying and duplicating | | | | services (quick printing); | | | | Business services (embroidery | | | | of advertising on shirts and | | | | rug binding for the trade, | | | | aerosol packaging, solvent | | | | recovery service-contract, | | | | tobacco sheeting service, | | | | sponging, shrinking, etc., | | | | fabric for tailors and | | | | dressmakers, batik work); | | | | Armature rewinding stores | | | | (remanufacturing); Services | | | | allied to motion picture | | | | production (reproduction of | | | | video); Dental laboratories | | | | 42 | Wholesale Trade | | | 423830 | Industrial Machinery | Except facilities engaged | | and Equipment Merchant | in sales of industrial | | | Wholesalers | machinery and equipment | | | (merchant wholesalers) | | | | 423840 | Industrial Supplies | No exceptions or | | Merchant Wholesalers | limitations | | | 423850 | Service Establishment | No exceptions or | | Equipment and Supplies | limitations | | | Merchant Wholesalers | | | | 423930 | Recyclable Material | No exceptions or | | Merchant Wholesalers | limitations | | | 4242 | Drugs and Druggists' | No exceptions or | | Sundries Merchant | limitations | | | Wholesalers | | | | 424310 | Piece Goods, Notions | Limited to merchant | | and Other Dry Goods | wholesalers of yarn, except | | | Merchant Wholesalers | industrial | | | 424340 | Footwear Merchant | Limited to merchant | | Wholesalers | wholesalers of footwear | | | cutstock | | | | 4246 | Chemical and Allied | No exceptions or | | Products Wholesalers | limitations | | | 4247 | Petroleum and | No exceptions or | | Petroleum Merchant | limitations | | | Wholesalers | | | | 424810 | Beers and Ale | No exceptions or | | Merchant Wholesalers | limitations | | | 424820 | Wine and Distilled | No exceptions or | | Alcoholic Beverage | limitations | | | Merchants Wholesalers | | | | 4249 | Miscellaneous | No exceptions or | | Nondurable Goods | limitations | | | Merchants Wholesalers | | | | 425110 | Business to Business | Limited to facilities | | Electronic Markets | engaged in the wholesale | | | distribution of the | | | | following: Industrial | | | | supplies (business to | | | | business electronic markets); | | | | Service establishments | | | | equipment and supplies | | | | (business to business | | | | electronic markets); Scrap | | | | and waste metals (business to | | | | business electronic markets); | | | | Drugs, drug proprietaries , | | | | and druggists' sundries | | | | (business to business | | | | electronic markets); Plastic | | | | materials and basic forms | | | | sundries (business to | | | | business electronic markets); | | | | Chemical and allied products, | | | | not otherwise classified | | | | (business to business | | | | electronic markets); | | | | Petroleum and petroleum | | | | products wholesalers, except | | | | bulk stations and terminals | | | | (business to business | | | | electronic markets); Beer, | | | | wine and distilled alcoholic | | | | beverages (business to | | | | business electronic markets); | | | | Farm supplies (business to | | | | business electronic markets); | | | | Books, periodicals and | | | | newspapers (business to | | | | business electronic markets); | | | | Flowers, nursery stock and | | | | florists' supplies (business | | | | to business electronic | | | | markets); Tobacco and tobacco | | | | products (business to | | | | business electronic markets); | | | | Paints, varnishes and | | | | supplies (business to | | | | business electronic markets); | | | | Nondurable goods, not | | | | elsewhere classified | | | | (business to business | | | | electronic markets); | | | | 425120 | Wholesale Trade | Limited to facilities | | Agents and Brokers | engaged in wholesale | | | distribution of the | | | | following: | | |

| Subsector Code or Industry Code | Description | Exceptions and/or Limitations | | --- | --- | --- | | Industrial supplies, | | | | not elsewhere classified | | | | (agents and brokers); | | | | Service establishments | | | | equipment and supplies | | | | (agents and brokers); | | | | Scrap and waste metals | | | | (agents and brokers); | | | | Drugs, drug | | | | proprietaries, and | | | | druggists' sundries | | | | (agents and brokers); | | | | Plastic materials and | | | | basic forms and shapes | | | | (agents and brokers); | | | | Chemical and allied | | | | products, not otherwise | | | | classified (agents and | | | | brokers); | | | | Petroleum and | | | | petroleum products | | | | wholesalers, except bulk | | | | stations and terminals | | | | (agents and brokers); | | | | Beer, wine and | | | | distilled alcoholic | | | | beverages (agents and | | | | brokers); | | | | Farm supplies (agents | | | | and brokers); | | | | Books, periodicals and | | | | newspapers (agents and | | | | brokers); | | | | Flowers, nursery stock | | | | and florists' supplies | | | | (agents and brokers); | | | | Tobacco and tobacco | | | | products (agents and | | | | brokers); | | | | Paints, varnishes and | | | | supplies (agents and | | | | brokers); | | | | Nondurable goods, not | | | | elsewhere classified | | | | (agents and brokers); | | | | 44-45 | Retail Trade | | | 441110 | New Car Dealers | No exceptions or | | limitations | | | | 441120 | Used Car Dealers | No exceptions or | | limitations | | | | 444220 | Nurseries, Garden Centers | Limited to wholesale | | and Farm Supply Stores | facilities engaged in | | | sales of the following: | | | | Farm supplies (lawn and | | | | garden supplies sold via | | | | retail method); and | | | | Flowers, nursery stock | | | | and florists' supplies | | | | (sold via retail method) | | | | 445310 | Beer, Wine and Liquor | Limited to wholesale | | Stores | facilities engaged in | | | sales of beer, wine and | | | | distilled alcoholic | | | | beverages via retail | | | | method | | | | 446110 | Pharmacies and Drug | Limited to wholesale | | Stores | facilities engaged in | | | sales of drugs, drug | | | | proprietaries, and | | | | druggists' sundries | | | | (drugs and sundries sold | | | | via retail method) | | | | 446120 | Cosmetics, Beauty | Limited to wholesale | | Supplies and Perfume Stores | facilities engaged in | | | retail sales of cosmetics | | | | and perfumes | | | | 446191 | Food (Health) Supplement | Limited to wholesale | | Stores | facilities engaged in | | | retail sales of food | | | | supplements | | | | 4471 | Gasoline Stations | Except convenience | | stores with gas | | | | 451211 | Book Stores | Limited to wholesale | | facilities engaged in | | | | sales of books, | | | | periodicals and | | | | newspapers (sold via | | | | retail method) | | | | 453220 | Gift, Novelty, and | Limited to wholesale | | Souvenir Stores | facilities engaged in | | | sales of curios, | | | | statuary, gifts, | | | | novelties, and souvenirs | | | | sold via retail method | | | | 453910 | Pet and Pet Supplies | Limited to wholesale | | Stores | facilities engaged in | | | sales of pets, pet | | | | supplies and tropical | | | | fish (sold via retail | | | | method) | | | | 453991 | Tobacco Stores | Limited to wholesale | | facilities engaged in | | | | sales of tobacco and | | | | tobacco products (sold | | | | via retail method), and | | | | Smokers' supplies (sold | | | | via retail method) | | | | 453998 | All Other Miscellaneous | Limited to wholesale | | Store Retailers (Except | facilities engaged in | | | Tobacco Stores) | sales of industrial | | | supplies (sold via retail | | | | method), and plastic | | | | materials and basic forms | | | | and shapes (sold via | | | | retail method) | | | | 454310 | Fuel Dealers | Limited to petroleum | | bulk stations and | | | | terminals engaged in the | | | | distribution of heating | | | | oil or liquid petroleum | | | | gas sold to final | | | | consumer | | | | 48-49 | Transportation and | | | Warehousing | | | | 4811 | Scheduled Air | No exceptions or | | Transportation | limitations | | | 486 | Pipeline Transportation | No exceptions or | | Industry | limitations | | | 487110 | Scenic and Sightseeing | Limited to facilities | | Transportation, Land | engaged in horse-drawn | | | cabs and carriages | | | | services | | | | 488111 | Air Traffic Control | No exceptions or | | limitations | | | | 488119 | Other Airport Operations | Except facilities | | engaged in flying fields | | | | operated by aviation | | | | clubs | | | | 488190 | Other Support Activities | Limited to facilities | | for Air Transportation | engaged in aircraft | | | servicing and repairing | | | | 488210 | Support Activities for | Except facilities | | Rail Transportation | engaged in railroad | | | switching and terminal | | | | establishments (all but | | | | short line railroads) | | | | 488390 | Other Support Activities | Except facilities | | for Water Transportation | engaged in water | | | transportation services | | | | (all but lighthouse | | | | operations, piloting | | | | vessels in and out of | | | | harbors, boat and ship | | | | rental, marine salvage, | | | | lighterage, marine | | | | surveyor services, and | | | | canal operations); and | | | | Repair shops and related | | | | services engaged in ship | | | | scaling | | | | 488490 | Other Support Activities | Except terminal and | | for Road Transportation | service facilities for | | | motor vehicle passenger | | | | transportation; Terminal | | | | and joint terminal | | | | maintenance facilities | | | | for motor freight | | | | transportation; | | | | Arrangement of passenger | | | | services (arrangement of | | | | carpools and vanpools); | | | | and Driving services, for | | | | example, auto or truck | | | | delivery and pilot car | | | | services | | | | 488510 | Freight Transportation | No exceptions and/or | | Arrangement | limitations | | | 488991 | Packing and Crating | No exceptions and/or | | limitations | | | | 488999 | All Other Support | Limited to pipeline | | Activities for | terminals and stockyards | | | Transportation | for transportation | | | 492110 | Couriers | Limited to air courier | | services | | | | 51 | Information | | | 51111 | Newspaper Publishers | No exceptions or | | limitations | | | | 51112 | Periodical Publishers | No exceptions or | | limitations | | | | 51113 | Book Publishers | No exceptions or | | limitations | | | | 51114 | Directory and Mailing | Except direct mail | | List publishers | advertising services | | | (mailing list compilers) | | | | 511191 | Greeting Card Publishers | No exceptions or | | limitations | | | | 511199 | All Other Publishers | No exceptions or | | limitations | | | | 512220 | Integrated Record | No exceptions or | | Production/Distribution | limitations | | | 512230 | Music Publishers | Except facilities | | primarily engaged in | | | | music copyright | | | | authorizing use, music | | | | copyright buying and | | | | licensing, and music | | | | publishers | | | | working on their own | | | | account | | | | 517110 | Wired Telecommunication Carriers | Except cable and other | | program distribution, and | | | | broadband Internet service | | | | providers (for example, | | | | cable, DSL) | | | | 517210 | Wireless Telecommunication Carriers (Except | Except ship to shore | | Satellite) | broadcasting carriers | | | 517911 | Telecommunication Resellers | No exceptions or limitations | | 519130 | Internet Publishing and Broadcasting and Web | Except web search portals, | | Search Portals | Internet broadcasting, | | | special interest web sites, | | | | entertainment sites and | | | | interactive game sites | | | | 53 | Real Estate and Rental and Leasing | | | 532411 | Commercial Air, Rail, and Water Transportation | Limited to facilities | | Equipment Rental and Leasing | engaged in rental of railroad | | | cars | | | | 54 | Professional, Scientific and Technical Services | | | 541380 | Testing Laboratories | No exceptions or | | limitations | | | | 541614 | Process, Physical Distribution, and Logistics | Except facilities engaged | | Consulting Services | in management consulting | | | services (manufacturing | | | | management, physical | | | | distribution, and site | | | | location consulting) | | | | 541712 | Research and Development in the Physical, | Except facilities engaged | | Engineering and Life Sciences (except Biotechnology) | in commercial physical and | | | biological research; and | | | | Noncommercial research | | | | organizations (physical | | | | engineering and life | | | | sciences) | | | | 541890 | Other Services Related to Advertising | Except facilities engaged | | in sign painting and | | | | lettering, showcard painting, | | | | mannequin decorating service | | | | and other advertising related | | | | business services | | | | 541940 | Veterinary Services | Limited to facilities | | engaged as veterinary testing | | | | laboratories | | | | 56 | Administrative and Support and Waste Management | | | and Remediation Services | | | | 5617 | Services to Buildings and Dwellings | Except facilities engaged | | in ornamental shrub and tree | | | | services; Power washing | | | | building exteriors, not | | | | associated with construction; | | | | Disinfecting and pest control | | | | services (exterminating and | | | | pest control); Building | | | | cleaning and maintenance | | | | services (janitorial | | | | services, and services to | | | | building and dwellings, | | | | except janitorial services); | | | | Swimming pool cleaning and | | | | maintenance; and Furnace, | | | | duct, gutter, and drain | | | | cleaning services | | | | 56221 | Hazardous Waste Treatment and Disposal | No exceptions or | | limitations | | | | 562910 | Remediation Services | Except facilities engaged | | in asbestos abatement and | | | | lead paint removal | | | | contractors | | | | 562920 | Materials Recovery Facilities | No exceptions or | | limitations | | | | 562998 | All Other Miscellaneous Waste Management | Except facilities engaged | | Services | in sewer cleaning and rodding | | | 61 | Educational Services | | | 611110 | Elementary and Secondary Schools | No exceptions or limitations | | 611210 | Junior Colleges | No exceptions or limitations | | 611310 | Colleges, Universities and Professional Schools | No exceptions or | | limitations | | | | 611512 | Flight Training | Except schools and | | educational services (flying instruction) | | | | 611513 | Apprenticeship Training | No exceptions or | | limitations | | | | 611519 | Other Technical and Trade Schools | Limited to facilities | | engaged as vocational schools | | | | (except aviation and flight | | | | training and apprenticeship | | | | training) | | | | 62 | Health Care and Social Assistance | | | 622 | Hospitals | No exceptions or | | limitations | | | | 72 | Accommodation and Food Services | | | 722310 | Food Service Contractors | Limited to facilities | | engaged in dining car | | | | operations on a fee or | | | | contract basis | | | | 81 | Other Services (Except Public Administration) | | | 81111 | Automotive, Mechanical and Electrical Repair | No exceptions or | | and Maintenance | limitations | | | 811121 | Automotive Body, Paint and Interior Repair and | No exceptions or | | Maintenance and Glass Repair | limitations | | | 811122 | Automotive Glass Replacement Shops | Except facilities engaged | | in automotive window tinting | | | | 811198 | All Other Automotive Repair and Maintenance | Except automotive services | | 8113 | Commercial and Industrial Machinery and | Limited to facilities | | Equipment (Except Automotive and Electronic) Repair | engaged in welding repair | | | and Maintenance | | | | 811420 | Reupholstery and Furniture Repair | Limited to facilities | | engaged in aircraft | | | | upholstery repair | | | | 811490 | Other Personal and Household Goods Repair and | Limited to facilities | | Maintenance | engaged in pleasure boat | | | repair | | | | 812320 | Drycleaning and Laundry Services (Except | Limited to facilities | | Coin-operated) | engaged as drycleaning | | | plants, except rug cleaning | | | | 812332 | Industrial Launderers | No exceptions or limitations |

Except for the purposes of N.J.S.A. 34:5A-26, "employer" also means the State and local governments, or any agency, authority, department, bureau, or instrumentality thereof, or any non-profit, non-public school, college or university.

"Environmental Hazardous Substance" or "EHS" means any substance designated by the Department in N.J.A.C. 7:1G-2.

"Environmental Hazardous Substance list" means the list of Environmental Hazardous Substances in N.J.A.C. 7:1G-2.

"Environmental Hazardous Substance Number" means the unique number assigned by the Department to each EHS.

"Environmental Survey" means a written form, comprised of the Community Right to Know Survey, and the Release and Pollution Prevention Report, prepared by the Department of Environmental Protection and transmitted to an employer, on which the employer shall provide certain information concerning each of the environmental hazardous substances at the facility, including, but not limited to, the following:

1. The chemical name and the Chemical Abstracts Service number of the environmental hazardous substance;

2. A description of the use of the environmental hazardous substance at the facility;

3. The quantity of the environmental hazardous substance produced at the facility;

4. The quantity of the environmental hazardous substance brought into the facility;

5. The quantity of the environmental hazardous substance consumed at the facility;

6. The quantity of the environmental hazardous substance shipped out of the facility, as or in, products;

7. The maximum inventory of the environmental hazardous substance stored at the facility, the methods of storage, and the frequency and methods of transfer;

8. The total stack or point-source emissions of the environmental hazardous substance;

9. The total estimated fugitive or non point-source emissions of the environmental hazardous substance;

10. The total discharge of the environmental hazardous substance into the surface or groundwater, the treatment methods, and the raw wastewater volume and loadings;

11. The total discharge of the environmental hazardous substance into publicly owned treatment works;

12. The quantity and methods of disposal, of any wastes containing an environmental hazardous substance, the methods of on-site storage of these wastes, the location or locations of the final disposal site for these wastes, and the identity of the hauler of the waste;

13. The total quantity of environmental hazardous substances (EHSs) generated at the facility, including hazardous substances generated as nonproduct output;

14. The quantity of environmental hazardous substances (EHSs) recycled on-site and off-site; and

15. Information pertaining to pollution prevention activities at the facility.

"Extremely hazardous substances" means chemicals on the list developed by the United States Environmental Protection Agency (USEPA) pursuant to Section 302 of Title III of the Federal Superfund Amendments and Reauthorization Act (SARA).

"Facility" means the building, equipment and contiguous area at a single location used for the conduct of business. For the purpose of this chapter, "Facility" shall not include a research and development laboratory.

"Hazard Code" means a number assigned by the Department to represent each hazard category established by the US Environmental Protection Agency pursuant to the Superfund Amendments and Reauthorization Act (SARA), Title III.

"Hazardous substance" means any substance defined by the State Department of Health in N.J.A.C. 8:58-9.

"Hazardous waste" means any solid waste defined as hazardous waste by the Department pursuant to P.L. 1970, c.39 (N.J.S.A. 13:1E-1 et seq.)

"Input" means the total of starting inventory, quantity produced on site, quantity brought on site, and quantity recycled out of process and reused on site.

"Inventory range" means the upper and lower limits of the quantity of a hazardous substance used, stored or manufactured on site.

"Inventory range code" is a representation of an inventory range for reportable hazardous substances.

"Local Emergency Planning Committee" means a committee formed pursuant to Title III of the Federal Superfund Amendments and Reauthorization Act.

"Mixture" means a combination of two or more substances not involving a chemical reaction.

"Output" means the total of quantity consumed, quantity shipped off site as (or in) product, ending inventory, quantity recycled out of process and reused on site, quantity destroyed through on site treatment, quantity destroyed through on-site energy recovery, air emissions, water discharges, quantity disposed of on site, and other off site transfers.

"Person" includes an individual, corporation, company, partnership, firm, association, trust, estate, public or private institution, group, society, joint stock company, municipality, county, all political subdivisions of this State or any agency or instrumentality thereof, including health department, any agency or instrumentality of the State and any legal successor, representative agent or agency of the foregoing.

"Pilot plant" means pilot facility as that term is defined at N.J.S.A. 13:1D.

"Release and Pollution Prevention Report" means the reporting form which is used to fulfill the environmental release and pollution prevention reporting requirements of the environmental survey, formerly known as Part II of the environmental survey.

"Research and development (R & D) laboratory" means a specially designated area, including pilot plants, used primarily for research, development, and testing activity, and not primarily involved in the production of goods for commercial sale, in which environmental hazardous substances are used by or under the direct supervision of a technically qualified person. For the purpose of reporting on the Community Right to Know Survey, "primarily" means greater than 50 percent.

"Right to Know Survey" means a survey prepared by the Department of Health and completed by a public sector employer pursuant to the Act, on which the employer shall report each hazardous substance present at his facility.

"Special health hazard substance" means any substance defined by the State Department of Health in N.J.A.C. 8:59-10.

"Special health hazard substance list" means the list of substances defined by the State Department of Health in N.J.A.C. 8:59-10.

"Superfund Amendments and Reauthorization Act" or "SARA" means the Federal Act ( PL 99-499) establishing the "Emergency Planning and Community Right to Know Act of 1986" at Title III (42 USC 11001).

"Technically qualified person" in a research and development (R & D) laboratory means a person who has a bachelors degree in industrial hygiene, environmental science, health education, chemistry, or a related field and understands the health risks associated with exposure to the hazardous substances used in the R & D laboratory.

"Trade secret" means any formula, plan, pattern, process, production data, information, or compilation of information, which is not patented, which is known only to an employer and certain other individuals, and which is used in the fabrication and production of an article of trade or service, and which gives the employer possessing it a competitive advantage over businesses who do not possess it, or the secrecy of which is certified by an appropriate official of the federal government as necessary for national defense purposes. The chemical name and the Chemical Abstracts Service number of a substance shall be considered a trade secret only if the employer can establish that the substance is unknown to competitors.

"Trade secret claim" means a written request, made by an employer pursuant to N.J.S.A. 34:5A-15, to withhold the public disclosure of information on the grounds that the disclosure would reveal a trade secret.

"Trade secret docket number" means a code number temporarily or permanently assigned to the identity of information on the Community Right to Know Survey or Release and Pollution Prevention Report by the Department of Environmental Protection.

"Transmit" means to send via first-class mail or otherwise distribute.

"Unstaffed site" means a remotely operated site, not contiguous to any other staffed sites and at which no full-time or part-time employees are assigned at any time except for maintenance or emergency repair. An unstaffed site includes, but is not limited to, a cellular telephone tower, telecommunications relay box, switching box, telephone pole, and well station.

"Unusually hazardous" means likely to explode due to a highly volatile nature, a propensity to produce toxic fumes, or a tendency to react with water or common firefighting chemicals and any other property which the Department of Environmental Protection determines will make a substance an uncommon danger to firefighters and the surrounding community in the event of its exposure to a fire.

History

• Amended by R.1984 d.437, effective 10/1/1984.
• See: 16 N.J.R. 1854(a), 16 N.J.R. 2530(a).
• Substantially amended.
• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 N.J.R. 1631(a), 26 N.J.R. 200(a).
• Administrative Correction.
• See: 26 N.J.R. 1337(a).
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 N.J.R. 123(a), 26 N.J.R. 2930(a).
• Special amendment, R.2004 d.7, effective 12/4/2003 (to expire August 15, 2004).
• See: 36 N.J.R. 212(a).
• Rewrote "Employer".
• See: 36 N.J.R. 2762(b).
• Adopted concurrent amendment, R.2004 d.328, effective 7/29/2004, changes effective 9/7/2004.
• See: 36 N.J.R. 212(a), 36 N.J.R. 4121(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• Added "Input", "Output", and "Unstaffed site".
• Amended by R.2006 d.167, effective 5/1/2006.
• See: 37 N.J.R. 3896(a), 38 N.J.R. 1829(a).
• In the table in the definition of "Employer", inserted codes 488510, concerning freight transportation arrangement, 488991, concerning packing and crating, 488999, concerning all other support activities for transportation, and 517211, concerning paging.
• Administrative change.
• See: 40 N.J.R. 619(a).
• See: 45 N.J.R. 2476(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-1.3 Burden of proof for exemptions

(a) A person claiming that they qualify for any exemption under this chapter or that they are not otherwise subject to the rules of this chapter shall demonstrate and appropriately document entitlement to such exemption.

(b) Employers claiming that a certain chemical, hazardous substance, or mixture is not an EHS, as designated or delineated in N.J.A.C. 7:1G-2, shall, at a minimum, submit in support of such claim, a Material Safety Data Sheet (MSDS) for the substance or mixture in question.

(c) Employers shall, upon request, make available information to the Department to verify any statement made on the Community Right to Know Survey, Release and Pollution Prevention Report or in a request for an exemption. This information may include, but is not limited to: purchase records, sales records, production records, inventory records, or other business records or documents utilized by the employer or person. The employer shall make this information available to the Department within 30 days of notification.

History

• New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-1.4 Certification

An employer shall submit a Community Right to Know Survey and/or Release and Pollution Prevention Report, or a Research and Development laboratory exemption to the Department which shall include an original certification signed by the employer or a duly authorized representative, which states the following:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate and complete."

History

• New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-1.5 Department right of entrance and inspection

Pursuant to N.J.S.A. 13:1D-9 and 34:5A-29b, the Department shall have the authority to enter any business premises or building during normal hours or other reasonable time to determine compliance with the rules and regulations of the Department hereunder. Failure to permit such inspection after presentation of official credentials is an offense punishable under N.J.S.A. 2C:29-1.

History

• New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-1.6 Severability

If any provision of these rules or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of these rules and to this end, the provisions of these rules are declared to be severable.

N.J. Admin. Code § 7:1G-1.7 Revisions to North American Industry Classification System Codes for purposes of definition of "employer"

In the event that the Executive Office of the President, Office of Management and Budget, publishes new or revised North American Industry Classification System (NAICS) codes modifying the 2002 list of NAICS codes on which the definition of "employer" at N.J.A.C. 7:1G-1.2 is based, the Department shall modify the NAICS codes in the definition as necessary to ensure that, as required by N.J.S.A. 13:1D-139, the generally equivalent universe of employers continues to be regulated under this chapter. Specifically, the Department shall provide limitations and/or exceptions to the NAICS codes as required to maintain the regulated universe as of August 15, 2003. The Department shall publish in the New Jersey Register a notice of the new or revised NAICS code(s) and the corresponding administrative change(s) to the definition.

History

• Special New Rule, R.2004 d.7, effective 12/4/2003 (to expire August 15, 2004).
• See: 36 New Jersey Register 212(a).
• Administrative correction.
• See: 36 New Jersey Register 2762(b).
• Adopted concurrent new rule, R.2004 d.328, effective 7/29/2004.
• See: 36 New Jersey Register 212(a), 36 New Jersey Register 4121(a).

Subchapter 2 ENVIRONMENTAL HAZARDOUS SUBSTANCE LIST

N.J. Admin. Code § 7:1G-2.1 Designation of environmental hazardous substances

(a) The list of EHSs shall be comprised of the substances listed below:

1. Toxic Chemicals on the list at 40 CFR 372.65 established by the United States Environmental Protection Agency for reporting pursuant to SARA Title III section 313, incorporated herein by reference, as from time to time supplemented or amended;

2. Extremely Hazardous Substances on the list at 40 CFR 355 Appendix A designated under SARA Title III section 302, established by the United States Environmental Protection Agency for reporting, incorporated herein by reference, as from time to time supplemented or amended;

3. Chemicals designated as selected substances at Appendix A of this chapter, incorporated herein by reference, for Industrial Survey Project reporting.

4. Unusually Hazardous Substances defined at N.J.A.C. 7:1G-1.2 and listed below by the Department pursuant to N.J.S.A. 52:27D-223:

| Chemical | CAS Number | | --- | --- | | Saran | 8013-77-2 | | PVC (Chloroethylene, polymer) | 9002-86-2 | | Lopac | 9003-54-7 |

5. Any hazardous substance added to the list of chemicals subject to pollution prevention planning pursuant to N.J.A.C. 7:1K-3.6; and

6. Regulated Substances on the list at 40 CFR 68.130 established by the United States Environmental Protection Agency for accidental release prevention under Section 112(r) of the Federal Clean Air Act Amendments, incorporated herein by reference, as from time to time supplemented or amended.

(b) Chemical inventory reporting on the Community Right to Know Survey shall include all EHSs listed at (a)1 through 6 above.

(c) Environmental release, throughput, and waste transfer reporting on the Release and Pollution Prevention Report shall be limited to the list of substances described at (a)1 and 5 above.

History

• Amended by R.1984 d.416, effective 9/17/1984.
• See: 16 N.J.R. 1861(a), 16 N.J.R. 2432(a).
• Added amitrol, 1,1-dimethyl hydrazine, hexachlorocyclopentadiene, vinylidene chloride.
• Amended by R.1988 d.89, effective 2/16/1988.
• See: 19 N.J.R. 438(a), 20 N.J.R. 387(a).
• Added bromine, chlorine, hydrogen chloride, hydrogen fluoride, hydrogen sulfide, methyl isocyanate and phosphorus trichloride.
• Petition for Rulemaking: Three pigments excluded from list: C.I. Pigment Blue 15, Phthalocyanine Blue CAS No. 147-14-8, C.I. Pigment Green 7, Phthalocyanine Green CAS No. 1328-53-6 and C.I. Pigment Green 36, Phthalocyanine Green CAS No. 14302-13-7.
• See: 24 N.J.R. 2636(a), 24 N.J.R. 3440(c).
• Amended by R.1993 d.408, effective 8/16/1993.
• See: 25 N.J.R. 2166(a), 25 N.J.R. 3754(a).
• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 N.J.R. 1631(a), 26 N.J.R. 200(a).
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 N.J.R. 123(a), 26 N.J.R. 2930(a).
• Amended by R.1994 d.576, effective 11/21/1994.
• See: 26 N.J.R. 2833(a), 26 N.J.R. 4606(a).
• Public Notice: Petition for rulemaking.
• See: 27 N.J.R. 4010(b).
• Public Notice: Copper phthalocyanine compounds.
• See: 27 N.J.R. 5054(a).
• Amended by R.1997 d.191, effective 5/19/1997.
• See: 29 N.J.R. 725(a), 29 N.J.R. 2274(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-2.2 Reserved

History

• Amended by R.1988 d.89, effective 2/16/1988.
• See: 19 New Jersey Register 438(a), 20 New Jersey Register 387(a).
• Added 34 Halogens and 35 Inorganic Acids.
• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "chemical group and group numbers".

Subchapter 3 COMMUNITY RIGHT TO KNOW SURVEY

N.J. Admin. Code § 7:1G-3.1 Completion of Community Right to Know Portion of the Environmental Survey

(a) An employer shall complete and submit to the Department a Community Right to Know Survey for each facility covered by the rules indicating if EHSs were present during the reporting period and whether the EHSs met or exceeded the threshold quantities for reporting listed in (b) below.

(b) A threshold of 500 pounds or the Federal SARA 302 threshold planning quantity, whichever is lower, shall apply to all EHSs present in aggregate at the facility at any one time.

These thresholds for reporting do not apply to container labeling pursuant to N.J.A.C. 8:59.

(c) For each EHS that met or exceeded the thresholds listed in (b) above, an employer shall provide all information on a Community Right to Know Survey form approved by the Department, which shall include, but is not limited to, the following:

1. The chemical name, Chemical Abstracts Service registry number, if available, and the EHS number and USDOT number, if available, of each EHS which is present at the facility in a pure state or mixture;

2. For reporting, EHSs shall be grouped according to container type and location within the facility;

3. For EHSs present in the pure state, the quantity of each, in pounds, in terms of daily maximum and average daily amount, and the hazard code for the EHS;

4. EHSs in mixtures shall be reported as follows:

i. Each EHS comprising more than one percent of a mixture (or .1 percent if the EHS is carcinogenic as defined at 29 CFR 1910.1200(d)4 of the Occupational Safety and Health Standard) shall be reported with its quantity determined by multiplying the weight percent of the EHS by the mass, in pounds, of the entire mixture.

ii. EHSs in mixtures in the following generic categories may be reported using the generic name and the quantity of the entire mixture: gasoline, new and used petroleum oil, and hazardous waste;

5. The major methods of storage, including container type, temperature, pressure conditions, and locations shall be reported including the number of days the EHS was present onsite during the calendar year at the facility; and

6. If no EHS is present in a mixture, and the mixture is subject only to reporting pursuant to the Federal requirements of Section 312 of SARA ( 40 CFR 370), a product name may be used to report the substance.

7. Quality control samples of substances that are elsewhere reported on the Community Right to Know Survey may be listed as a single entry: "samples of reported substances."

(d) An employer or owner or operator of any facility subject to Federal hazardous chemical reporting under Section 312 of SARA ( 40 CFR 370) shall submit a completed Community Right to Know Survey to the Department to satisfy these requirements.

History

• Repeal and New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Completion of Environmental Survey".
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 New Jersey Register 123(a), 26 New Jersey Register 2930(a).
• Amended by R.1994 d.576, effective 11/21/1994.
• See: 26 New Jersey Register 2833(a), 26 New Jersey Register 4606(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 New Jersey Register 3376(a), 37 New Jersey Register 275(a).
• Rewrote (b).

N.J. Admin. Code § 7:1G-3.2 Reporting exemptions

(a) EHSs meeting any of the following criteria are exempt from chemical inventory reporting on the Community Right to Know Survey:

1. EHSs present at a facility in quantities that do not meet or exceed the thresholds for reporting found at N.J.A.C. 7:1G-3.1(b);

2. EHSs located within a research and development laboratory as defined in N.J.A.C. 7:1G-1.2 and used for R & D activities are exempt from reporting on the Community Right to Know Survey provided the employer has obtained a research and development laboratory exemption from the Department, which may be obtained in accordance with the following procedure:

i. The employer shall submit to the Department for evaluation and approval a completed research and development laboratory exemption application, on forms approved by the Department, containing the following information:

(1) The facility name, location and New Jersey Employer Identification Number;

(2) An 8 1/2 x 11 inch map of the facility indicating the designated research and development area(s) of the facility. The map should indicate if R & D activities are limited to specific locations within the facility or if the entire facility is dedicated to R & D activities;

(3) The percentage of total work hours devoted to R & D activities in the designated area;

(4) Written verification from the local fire department that an acceptable communications program has been established with them to assist in responding to emergencies at the research and development laboratory;

(5) A description of the technical qualifications of each supervisor of the R & D laboratory area(s) or a certification by the supervisor of the research and development laboratory operations at the facility that each research and development laboratory is under the direct supervision of a technically qualified person; and

(6) A signed certification that the information contained in the R & D laboratory exemption application is true, accurate and complete;

ii. An employer with an approved research and development laboratory exemption from the Department will not be required to reapply for the exemption under this chapter.

iii. An approved research and development laboratory exemption may be reviewed by the Department from time to time to ascertain continued eligibility for the exemption. The Department may require clarifying information pursuant to N.J.A.C. 7:1G-5.2 or inspect the R & D laboratory pursuant to N.J.A.C. 7:1G-1.5 for this purpose. The Department may rescind an approved R & D laboratory exemption if the employer is found not in compliance with the conditions stated on the R & D laboratory exemption approval letter issued by the Department.

3. EHSs which are an integral part of a facility structure or furnishings;

4. EHSs which are the personal property and are for the personal use of an employee are not required to be reported on the Community Right to Know Survey; or

5. Ammunition when on the person of security personnel.

6. EHS's except those listed as unusually hazardous substances, that are present as a solid in any manufactured item which has been formed to a specific shape or design during manufacture to the extent that exposure to the EHS does not occur under normal conditions of use.

(b) The exemption from reporting at (a) above does not apply to container labeling pursuant to N.J.A.C. 8:59.

(c) An employer exempt from chemical inventory reporting in accordance with (a) above shall complete and return the first page of the Community Right to Know Survey indicating that an exemption from reporting is being claimed.

(d) An employer exempt from chemical inventory reporting in accordance with (a)1 and 2 above is subject to the Right to Know fee assessment pursuant to N.J.S.A. 34:5A-26.

(e) An employer having no EHSs at any facility is exempt from the annual Right to Know fee assessment.

(f) An employer engaged only in administrative office activities is exempt from the annual Right to Know fee assessment and the requirement to annually transmit the Community Right to Know Survey after initial notification to the Department indicating such status is made.

(g) An employer having an unstaffed site is exempt from submitting the Community Right to Know Survey for that site, unless the unstaffed site is a facility subject to Section 312 of Emergency Planning and Community Right-to-Know Act (EPCRA), (42 U.S.C. § 11022) and after initial notification to the Department indicating such status is made.

(h) An employer is exempt from submitting the Community Right to Know Survey for any facility at which no EHSs are present or at which EHSs are present in quantities that do not meet or exceed the thresholds for reporting found at N.J.A.C. 7:1G-3.1(b), after initial notification to the Department indicating such status is made.

(i) An employer shall notify the Department when there is any change in the circumstances that gave rise to the exemption claimed under this section.

History

• Amended by R.1988 d.90, effective 2/16/1988.
• See: 19 New Jersey Register 703(a), 20 New Jersey Register 388(a).
• Added text "(or county clerk if there is no county health department)" and "Submission of the clarifying ...".
• Administrative Correction: Clarifying information mandatory within 30 days of notification.
• See: 21 New Jersey Register 3482(a).
• Repeal and New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Clarification of completed Environmental Survey".
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 New Jersey Register 123(a), 26 New Jersey Register 2930(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 New Jersey Register 3376(a), 37 New Jersey Register 275(a).
• Rewrote (e); added (g) through (i).

N.J. Admin. Code § 7:1G-3.3 Reserved

History

• Repealed by R.1994 d.3, effective 1/3/1994.
• See 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Updating of Environmental Survey".

Subchapter 4 RELEASE AND POLLUTION PREVENTION REPORT

N.J. Admin. Code § 7:1G-4.1 Completion of Release and Pollution Prevention Report

(a) An employer who is subject to the reporting requirements of SARA Title III Section 313, or other criteria established by the Department in accordance with the Administrative Procedures Act, shall submit to the Department a Release and Pollution Prevention Report by July 1 of the year following the reporting year.

(b) An employer shall complete a Release and Pollution Prevention Report subject to the threshold(s) for reporting established pursuant to the Pollution Prevention Act (N.J.S.A. 13:1D).

(c) An employer shall provide the environmental release, throughput, waste transfer and pollution prevention information required by the Environmental Survey as defined at N.J.A.C. 7:1G-1.2 and any pollution prevention information required pursuant to the Pollution Prevention Act (N.J.S.A. 13:1D-40(b)) on the Release and Pollution Prevention Report component of the Environmental Survey.

1. The difference between input and output quantities in throughput reporting on the Release and Pollution Prevention Report shall not exceed five percent.

(d) An employer who has obtained a research and development laboratory exemption pursuant to N.J.A.C. 7:1G-3.2(a)2 is not required to provide environmental release, throughput, waste transfer and pollution prevention information for the exempted R & D laboratory area(s) of the facility.

(e) Environmental release, throughput, and waste transfer reporting on the Release and Pollution Prevention Report shall be limited to the list of substances described at N.J.A.C. 7:1G-2.1(a)1 and 5.

History

• Amended by R.1988 d.89, effective 2/16/1988.
• See: 19 New Jersey Register 438(a), 20 New Jersey Register 387(a).
• Added (b).
• Repeal and New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Designation of Hazardous Materials".
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 New Jersey Register 123(a), 26 New Jersey Register 2930(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 New Jersey Register 3376(a), 37 New Jersey Register 275(a).
• In (c), added 1.

N.J. Admin. Code § 7:1G-4.2 Reserved

History

• Amended by R.1988 d.89, effective 2/16/1988.
• See: 19 New Jersey Register 438(a), 20 New Jersey Register 387(a).
• Added "Table and Hazardous Materials Table" and deleted "tale".
• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Amendments to Hazardous Materials List".

Subchapter 5 SUBMITTAL OF THE COMMUNITY RIGHT TO KNOW SURVEY AND RELEASE AND POLLUTION PREVENTION REPORT

N.J. Admin. Code § 7:1G-5.1 Survey submittal

(a) An employer subject to reporting under the Worker and Community Right to Know Act, regardless of whether the employer also meets the Federal requirements for reporting under Section 312 of SARA, shall transmit a Community Right to Know Survey for each covered facility to the Department by March 1 of the year following the reporting year. A copy shall also be transmitted to the local fire and police departments, local emergency planning committee, and the Right to Know County Lead Agency of the county in which the facility is located.

(b) An employer subject only to the reporting requirements of Section 312 of SARA shall transmit an original Community Right to Know Survey for each covered facility to the Department by March 1 of the year following the reporting year. A copy shall also be transmitted to the local fire department and local emergency planning committee.

(c) An employer shall transmit an original completed Release and Pollution Prevention Report to the Department by July 1 of the year following the reporting year. A copy shall also be transmitted to the county lead agency of the county in which the facility is located.

(d) An employer shall retain a copy of the Community Right to Know Survey and/or Release and Pollution Prevention Report at the facility and make it available to facility employees within five working days of the request.

(e) An employer shall make available, upon request, a copy of the Community Right to Know Survey and/or Release and Pollution Prevention Report for the most recent survey year to State inspectors, or their local designees, at the time of inspection.

History

• Repeal and New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Completion of ESI Survey".
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 New Jersey Register 123(a), 26 New Jersey Register 2930(a).

N.J. Admin. Code § 7:1G-5.2 Submittal of clarifying information

The Department may require an employer to submit information clarifying any statement made on the Community Right to Know Survey and/or Release and Pollution Prevention Report, subject to the trade secret provision of N.J.S.A. 34:5A-15. The Department shall transmit such clarifying information to the county health department, local fire department and police department as it deems necessary. Clarifying information shall be submitted within 30 days of notification, or subsequent date specified by the Department.

History

• Amended by R.1988 d.90, effective 2/16/1988.
• See: 19 New Jersey Register 703(a), 20 New Jersey Register 388(a).
• Information by employer is mandatory within 30 days of notification or other date specified by department.
• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-5.3 Electronic reporting

(a) Beginning with reporting year 2004, any facility required to submit the Release and Pollution Prevention Report (RPPR) pursuant to this chapter shall submit its RPPR electronically using the Department's on-line reporting website located at http://www.nj/gov/dep/online/.

(b) If it is a hardship for an employer to submit an RPPR electronically, the employer may request approval from the Department to submit the RPPR in paper form. The Department shall approve such a request provided that:

1. The request is submitted no later than March 1 of the submittal year;

2. The employer explains:

i. The grounds for the hardship that electronic submittal would impose; and

ii. The effort(s) the employer will make to ensure the facility's ability to make electronic submittals in the future; and

3. The employer makes every effort to become able to submit the form electronically in future years.

(c) The Department shall approve, on a case-by-case basis, an extension of a reporting deadline if a facility is unable to electronically file its RPPR due to a malfunction in the Department's electronic reporting system. The Department shall not approve any extension due to a malfunction in a facility's electronic information technology system, unless the facility verifies the malfunction in writing and promptly files the report by other means.

History

• New Rule, R.2005 d.27, effective 1/18/2005.
• See: 36 New Jersey Register 3376(a), 37 New Jersey Register 275(a).

N.J. Admin. Code § 7:1G-5.4 Reserved

History

• Repealed by R.1988 d.89, effective 2/16/1988.
• See: 19 New Jersey Register 438(a), 20 New Jersey Register 387(a).
• Repealed section dealing with waiver of N.J.A.C. 7:1G-5.1, 5.2 and 5.3.

Subchapter 6 TRADE SECRETS

N.J. Admin. Code § 7:1G-6.1 Authority

(a) This subchapter is promulgated pursuant to the Worker and Community Right to Know Act, L. 1983, c.315, N.J.S.A. 34:5A-1 et seq., in particular, N.J.S.A. 34:5A-15 and 30, and N.J.S.A. 13:1D-9.

(b) This subchapter is a jointly adopted rule of the Department of Environmental Protection and the Department of Health (see N.J.A.C. 8:59-3).

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-6.2 Purpose

(a) Trade secret claims will be filed or maintained by employers who are subject to the Act to maintain the confidentiality of information requested on the Right to Know Survey or the environmental survey and for the names of substances on container labels. It is the purpose of this subchapter to prescribe:

1. The procedures and guidelines for filing trade secret claims and maintaining trade secret information;

2. The information required by the department for determination of a trade secret claim;

3. The methods for maintaining the confidentiality and security of trade secret information;

4. The criteria for determination of a trade secret claim;

5. The procedure for requesting trade secret information;

6. The procedures for appeal of a determination of a trade secret claim; and

7. The procedures and guidelines for the disclosure of trade secret information.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.3 Definitions

"Department" means, for the purposes of this subchapter, both the New Jersey Department of Health and the New Jersey Department of Environmental Protection, unless otherwise indicated.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-6.4 General provisions

(a) Except as provided in N.J.A.C. 7:1G-6.15, the Department shall not disclose any trade secret claim and supporting information, that is pending or has been approved. This non-disclosure requirement shall apply to trade secret claims for substances which were subsequently deleted from the environmental hazardous substances list.

(b) An employer shall report the information for which a trade secret claim is being made to the appropriate Department in accordance with N.J.A.C. 8:59-3.6 (N.J.A.C. 7:1G-6.6), or maintain this information in accordance with the provisions of N.J.A.C. 8:59-3.6.

(c) On the Right to Know Survey and the environmental survey which the employer sends to county and local government agencies and which the employer retains on file at the facility for inspection by an enforcement officer or employees, the employer shall conceal or omit information claimed to be a trade secret, and shall note on the surveys where information has been claimed to be a trade secret.

(d) Any Right to Know Survey or environmental survey shall only be made available to the public with trade secret information concealed as required in subsection (c) above indicating pending or approved trade secret claim status.

(e) All documents containing the information claimed to be a trade secret and supporting information which are submitted, shall be submitted to the appropriate Department by certified mail return receipt requested, by personal delivery, or by other means which requires verification of receipt, the date of receipt, and the name of the person who receives the document at the Department. Such documents concerning the Right to Know Survey or labeling of containers shall be mailed or delivered to: Manager, Right to Know Program

New Jersey Department of Health

PO Box 368

Trenton, NJ 08625-0368

Such documents concerning the environmental survey shall be mailed or delivered to: Chief, Office of Pollution Prevention and Right to Know

New Jersey Department of Environmental Protection

Mail Code 22-03C

PO Box 420

Trenton, NJ 08625-0420

(f) The top of each page of any document containing the information for which a trade secret claim is being made and submitted pursuant to (e) above, shall display the word "CONFIDENTIAL" in bold type or stamp. If the documents submitted in support of the trade secret claim are to be kept confidential, they shall be similarly stamped.

(g) The outside of the envelope containing the information claimed to be a trade secret and any other envelopes containing information in support of such claim submitted pursuant to (e) above, shall display the word "CONFIDENTIAL" in bold type on both sides. This envelope shall be enclosed in a plain envelope addressed for mailing.

(h) The department shall determine the validity of a trade secret claim when a request is made by any person for the disclosure of the information for which the trade secret claim was made and at any time that the department deems appropriate. Employers shall be notified before the department makes its determination and shall be provided 30 days to submit any information pursuant to N.J.A.C. 7:1G-6.6 except when the employer has filed a trade secret claim prohibited by N.J.A.C. 7:1G-6.5. The department shall make its determination on a trade secret claim in accordance with the criteria in N.J.A.C. 7:1G-6.9. The department may approve a trade secret claim based on information provided pursuant to N.J.A.C. 7:1G-6.6.

(i) The department may revoke an approved trade secret claim upon the receipt of new information from any person regarding the information previously submitted by an employer pursuant to N.J.A.C. 7:1G-6.8. In the event of such revocation, N.J.A.C. 7:1G-11 and 13 shall apply in the same manner as where the department rejects a trade secret claim.

(j) Nothing in these regulations shall be construed as prohibiting the incorporation of trade secret information into cumulations of data subject to disclosure as public records, provided that such disclosure is not in a form that would foreseeably allow persons outside the department, not otherwise having knowledge of such information, to deduce from it the trade secret information, or the identity of the employer who supplied it to the department.

(k) Any failure by an employer to submit additional information relevant to the trade secret claim requested by the department or to allow inspection of its facility by the department for purposes of determining the validity of a trade secret claim shall constitute valid cause for denial of the trade secret claim.

( l ) Compliance with this subchapter does not constitute satisfaction of Federal trade secret claim requirements for substances exceeding the Federal reporting thresholds of Title III of the Superfund Amendments and Reauthorization Act.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.1993 d.408, effective 8/16/1993.
• See: 25 N.J.R. 2166(a), 25 N.J.R. 3754(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-6.5 Prohibited claims

(a) A trade secret claim may not be made to the Department of Environmental Protection for the following information:

1. The name and Chemical Abstracts Service number or United States Department of Transportation identification number of any substance listed on the Special Health Hazard Substance List (N.J.A.C. 8:59-10), which meets the criteria established pursuant to N.J.A.C. 8:59-10;

2. Any information required to be publicly disclosed pursuant to any other act;

3. The following information requested on Part I of the environmental survey:

i. Name of the employer;

ii. Location of the facility;

iii. Name and Chemical Abstracts Service number of an environmental hazardous substance where the employer is otherwise required to report emissions of such substance from its facility into the air or water or onto the land; and

iv. Name and United States Department of Transportation Identification Number of a hazardous material also listed in N.J.A.C. 7:1G-2 where the employer is otherwise required to report emissions of such substances into the air or water or onto the land; and

v. The United States Department of Transportation designated Hazard Class of any hazardous material.

4. The following information requested on Part II of the environmental survey:

i. Name of the employer;

ii. Location of the facility;

iii. Name and Chemical Abstracts Service number of an environmental hazardous substance which is emitted from the employer's facility into the air or water or onto land;

iv. The total stack or point-source emissions of the environmental hazardous substance;

v. The total estimated fugitive or nonpoint-source emissions of any environmental hazardous substance;

vi. The total discharge of any environmental hazardous substance into the surface or groundwater, the treatment methods, and the raw wastewater volume and loadings;

vii. The total discharge of any environmental hazardous substance into publicly owned treatment works;

viii. The quantity, and methods of disposal, of any wastes containing any environmental hazardous substance, the method of on-site storage of these wastes, the location or locations of the final disposal site for these wastes, and the identity of the hauler of the wastes; and

ix.

(Reserved)

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.6 Procedure for filing trade secret claims and maintaining trade secret information

(a) An employer who claims that disclosing information on an environmental survey would reveal a trade secret shall file a trade secret claim with the Department of Environmental Protection in accordance with (b) below.

(b) The following procedure shall apply to employers claiming trade secret protection on the environmental survey:

1. An employer shall submit two versions of the survey. The first version shall contain all information requested by the Department, including any information claimed to be a trade secret. The employer shall clearly indicate on this version, by highlighting, underlining or otherwise marking any information claimed to be a trade secret. The top of each page shall display the word "CONFIDENTIAL" in bold type or stamp.

2. An employer shall submit a second version to the Department which will go into the public files. This version shall be identical to the first version except that it shall not contain information which the employer alleges to be a trade secret. In order to provide public notice that information has been omitted from this version under a claim of confidentiality, the second version shall indicate "trade secret claimed" or "TSC" where such omissions have been made.

3. The surveys shall be accompanied by the summary information in (c) below when the claim is initially submitted. If the trade secret claim has been filed previously, an employer shall submit only new pertinent information affecting the pending or approved claim.

4. The Department may request complete trade secret information from an employer in order to make a determination on the trade secret claim or for public health or medical emergencies. The employer shall submit the information to the Department within 30 days of the request unless emergency circumstances apply, in which case the information shall be submitted within a shorter period of time, as specified by the Department.

(c) An employer shall submit a summary of the following information at the time of submittal of the trade secret claim except as provided in (k) below:

1. Prior trade secret determinations concerning the trade secret claim by the department, other agency or court, and a copy of such determination or reference to it;

2. Whether or not the information is known outside the employer's business;

3. Whether the information is patented;

4. What if any would be the harmful effects of its disclosure;

5. The period of time for which a trade secret designation is requested, if appropriate;

6. The ease or difficulty with which the information could be disclosed by analytical techniques, laboratory procedures, or other means;

7. Whether it is used in the research and development, or fabrication and production, of an article of trade or service; and

8. Whether the trade secret is a formula, plan, pattern, process, production data, information, or compilation of information.

(d) The Department may at any time subsequent to the filing of a trade secret claim, request, in writing, the information listed in (d)1 through 5 below. Within 30 days of such written request, an employer shall answer the request in writing. The department may extend the period for submitting an answer for good cause shown.

1. Whether disclosure of the trade secret information would be likely to result in harmful effects on the employer's competitive position, and, if so,

i. What those harmful effects would be;

ii. The competitive advantage the employer possesses over employers who do not possess it; and

iii. The value of the information to the employer or the employer's competitor.

2. The extent to which the trade secret information is known by employees and others involved in the employer's business;

3. The extent of measures taken by the employer to guard the secrecy of the trade secret information;

4. The amount of effort or money expended by the employer in developing the trade secret information; and

5. Any other relevant information to assist the department in determining the validity of a trade secret claim.

(e) In addition to any information an employer is required to submit pursuant to (c) and (d) above, an employer may submit any other information relevant to the trade secret claim.

(f) An employer shall provide, as part of any trade secret claim or submission the names of reference documents used as the basis for stated conclusions.

(g) An employer shall certify that its trade secret claim is true, accurate and complete.

(h) The department may limit the length of a claim or submissions and require that they be made on forms provided by the department.

(i) An employer shall update trade secret information affecting a pending or approved trade secret claim within 60 days of the employer's knowledge or receipt of new pertinent information.

(j) (Reserved)

(k) Unless otherwise requested by the department, an employer is not required to submit supporting information with its trade secret claims on Part II of the environmental survey regarding the description of the use of the environmental hazardous substance on the site, the quantity produced on site, the quantity brought on site, the quantity consumed on site, and the quantity shipped off site either as a product or in the product.

(l) Private employers claiming confidentiality for trade secrets for container labeling and public employers claiming confidentiality for labeling or for reporting on Right to Know surveys shall comply with the regulations at N.J.A.C. 8:59-3.6.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.7 Confidentiality and security of trade secret information

(a) All trade secret information in support of a trade secret claim, pending or approved, shall be treated as confidential in accordance with (b) through (h) below.

(b) Information regarding trade secret claims, pending or approved, shall only be communicated in person or in writing, among persons authorized pursuant to N.J.A.C. 7:1G-6.7 and 6.15 as well as between employers and such authorized persons. Said information shall not be communicated over telecommunications networks, including, but not limited to, telephones, computers connected by modems, or electronic mail systems. An exception may be made to this provision for emergencies pursuant to N.J.A.C. 7:1G-6.15(g).

(c) Any document transmitted by the department to the employer or any other authorized person, which contains information claimed to be a trade secret, shall be sent by certified mail return receipt requested, by personal delivery, or by other means which requires verification of receipt, the date of receipt, and the name of the person who receives the document.

(d) The Department shall communicate only with the employer's chief executive officer or his designated representatives, such designation to be made in writing, regarding the trade secret claim. The individual signing the trade secret claim submitted to the Department shall be considered the designated representative if no other communication is received from the employer.

(e) Any document prepared by the department for the employer which contains information claimed to be a trade secret shall display the word "CONFIDENTIAL" in bold type or stamp on the top of each page. The envelope containing such document shall be addressed to the employer's chief executive officer or his designated representative and shall display the word "CONFIDENTIAL" in bold type on both sides. This envelope shall be enclosed in a plain envelope addressed for mailing.

(f) Except as provided in N.J.A.C. 8:59-3.15 (N.J.A.C. 7:1G-6.15), no person other than the Commissioner and his designated representatives and administrative law judges and their necessary staff conducting hearings on trade secret claims, shall have access to information regarding a trade secret claim. All designated representatives shall be employees of the State. Designations shall be made in writing. Designated persons other than administrative law judges shall sign an agreement to protect the confidentiality of the information before access is granted. Administrative law judges shall have access to trade secret information as necessary to preside over pre-hearing activities, conduct the hearing, render an initial decision, and return the record to either the Department of Environmental Protection or the Department of Health pursuant to N.J.A.C. 1:21.

(g) All documents containing information regarding a trade secret claim shall be stored in a locked file or safe in a locked office in the department. The file or safe and office containing such documents shall be locked when not being used by authorized persons.

(h) Persons authorized to use trade secret documents pursuant to (f) above shall do so in the office in which the trade secret documents are stored, unless authorized to remove the documents by the Commissioner or his designated representative. All trade secret documents which are removed shall be returned to the office in which the documents are stored each day by the end of the regular workday. The department shall maintain a log of persons who use documents containing trade secret information. The log shall include the person's name, title, and name of the document used, and the time of commencing and finishing use of the document. No trade secret document shall be delivered between offices by persons who are not authorized to handle said documents. Such documents shall not be duplicated unless necessary for purposes of N.J.A.C. 7:1G-6.15 or if the department determines that it is absolutely necessary to carry out its responsibilities under the Act. If so duplicated, the document shall be marked as a copy, but treated as if it was an original document. The copy shall be destroyed immediately after completion of the use for which it was intended.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• In (f), amended the N.J.A.C. reference.
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-6.8 Decision-making agency on a trade secret claim

(a) The Department of Health is authorized to approve or deny a trade secret claim concerning:

1. Information reported on the Right to Know Survey.

2. Labeling a container with the chemical name and Chemical Abstracts Service number of the substance in the container.

(b) The Department of Environmental Protection is authorized to approve or deny a trade secret claim concerning information reported on an environmental survey.

(c) Trade secret claims for labeling and reporting filed with both Departments shall be approved or denied jointly by the Department of Health and the Department of Environmental Protection.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 N.J.R. 3376(a), 37 N.J.R. 275(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).

N.J. Admin. Code § 7:1G-6.9 Criteria for determination of the validity of a trade secret claim

(a) Any formula, plan, pattern, process, production data, information, or compilation of information shall be considered a trade secret if the employer establishes that its secrecy is certified by an appropriate official of the federal government as necessary for national defense purposes, or if the employer establishes that:

1. It is not patented;

2. It is known only to the employer and certain other individuals;

It is used in the research and development or production of an article or of a mixture; and

4. It gives the employer possessing it a competitive advantage over businesses who do not possess it.

(b) The chemical name and Chemical Abstracts Service number of a substance shall be considered a trade secret only if the employer can establish that the substance is unknown to competitors, or is included in a formula or process that meets the criteria of (a) above.

(c) In determining whether a trade secret claim meets the requirements of (a) or (b) above, the Department shall consider information provided by the employer or any other person, including the information in (c)1 through 6 below:

1. The extent to which the information for which the trade secret claim is made known outside the employer's business;

2. The extent to which the information is known by employees and others involved in the employer's business;

3. The extent of measures taken by the employer to guard the secrecy of the information;

4. The value of the information to the employer or the employer's competitor;

5. The amount of effort or money expended by the employer in developing the information;

6. The ease or difficulty with which the information could be disclosed by analytical techniques, laboratory procedures, or other means.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.10 Request for trade secret information

(a) Any person may submit, at any time, a written request for the disclosure of information for which a trade secret claim is pending or has been approved, to the appropriate Department at the address provided in N.J.A.C. 8:59-3.4 (N.J.A.C. 7:1G-6.4). The request shall state the requestor's name, address, and affiliation, and may include information concerning the validity of a pending or approved trade secret claim. The names of the employees making requests for trade secret information on a Right to Know Survey or a label shall be kept confidential.

(b) A request for disclosure of an approved trade secret may be submitted only if accompanied by new significant information not previously submitted concerning the invalidity of the trade secret claim.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.11 Notification of determination of the validity of a trade secret claim

(a) Upon making a determination on the validity of a trade secret claim, the department shall notify the employer and the requestor of the determination by certified mail, return receipt requested. The notice shall state that the employer has 45 days from receipt of the department's determination to file a written request with the department for an administrative hearing on the determination.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.13 Appeal of determination

(a) If the Department denies an employer's trade secret claim, the employer shall have 45 days from the receipt of the Department's determination to file with the Department a written request for an administrative hearing on the determination. Such request shall be filed with the Department at the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street, Mail Code 401-07A

PO Box 420

Trenton, NJ 08625-0420

(b) (Reserved)

(c) If a request for an administrative hearing is made pursuant to (a) above, the department shall refer the matter to the Office of Administrative Law for a hearing thereon.

(d) Within 45 days of receipt of the administrative law judge's initial decision containing a recommendation on a matter referred to in (c) above, the Department shall affirm, reject, or modify the recommendation. The Department shall inform the employer of its decision on the administrative law judge's recommendation by certified mail return receipt requested. The Department's action shall be considered final agency action for purposes of the "Administrative Procedure Act", N.J.S.A. 52:14B-1 et seq., and shall be subject only to judicial review as provided in the Rules of Court.

(e) In the event that the department determines, pursuant to (d) above, that the trade secret claim is not valid, the employer shall have 45 days from receipt of the department's determination to notify the department, in writing, that it has filed to appeal the department's decision in the courts. If the employer does not so notify the department, the department shall disclose the information for which the trade secret claim was made in the manner set forth in N.J.A.C. 7:1G-6.14.

(f) Special rules applicable to trade secret claim appeals are set forth at N.J.A.C. 1:21.

History

• Administrative Correction and change to (a).
• See: 23 N.J.R. 3325(b).
• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 N.J.R. 858(a), 25 N.J.R. 3537(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).
• Administrative correction.
• See: 46 N.J.R. 75(a).

N.J. Admin. Code § 7:1G-6.14 Disclosure of information determined not to be a trade secret

(a) After a trade secret claim has been denied and all appeals and the right to bring an appeal have been exhausted, the Department shall take the following action:

1. Modify the employer's Right to Know Survey or environmental survey, as the case may be, on file with the Department to substitute the omitted information for the trade secret docket or registry number and add the information wherever else appropriate; and

2. Direct the employer to modify the Right to Know Survey or environmental survey on file at his facility to include the information for which the trade secret claim was denied and add the information wherever else appropriate; to send modified copies of the revised Right to Know Survey or environmental survey to the appropriate Department and all county and local agencies that are required by law, rule or regulation to receive the survey containing this information; and to replace the trade secret registry number with the chemical name and Chemical Abstracts Service number on its fact sheets and container labels, if applicable.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.15 Restricted access to trade secret information retained by the Department

(a) Except as provided in (b) through (g) below and N.J.A.C. 7:1G-6.7 or when so ordered by a court, no person shall willingly and knowingly disclose and no person shall willingly and knowingly receive trade secret information protected by this subchapter without the employer's written consent.

(b) An officer or employee of the State may be granted access to trade secret information protected by this subchapter, only in accordance with this section, upon a demonstration to the satisfaction of the department that such request is in connection with the official duties of the officer or employee under any law for the protection of public health.

1. An officer or employee of the State designated by the head of an agency may make a written request to the department for information on a pending or approved trade secret claim. Such request shall state:

i. Name, title, program, division and department of the officer or employee;

ii. The officer or employee's need for the information and its connection with official duties;

iii. The reason why the information cannot be obtained from other sources; and

iv. The public health law for which the information is needed.

2. If the department proposes to release trade secret information to an officer or employee of the State, the department shall notify, in writing and by certified mail, return receipt requested, the employer who submitted the trade secret claim of the intent to release such information.

(c) A contractor of the State and its employees may be granted access to trade secret information protected by this subchapter if the Department determines that such disclosure is necessary for the completion of any work contracted for in connection with the implementation of the Act, and that the requirements of (c)1 through 3 below have been satisfied. Such approval shall restrict access to the trade secret information to persons approved by the Department. Employers shall be notified of this determination by the Department prior to disclosure of the trade secret information. A contractor shall not receive any trade secret information unless:

1. The contractor has submitted a plan to the Department which describes measures for adequately protecting trade secret information from unauthorized disclosure, and such plan has been approved by the Department;

2. The contractor has provided written documentation demonstrating, to the satisfaction of the Department, that the contractor maintains Professional Liability Insurance or suitable indemnity insurance and Comprehensive General Liability Insurance in forms and in amounts to be set by the Department; and

3. In addition to the requirement of (e) below, the contractor has signed an agreement developed by the Department, protecting trade secret information from unauthorized disclosure. The agreement shall include a provision whereby the contractor assumes liability for any damages to an employer resulting from the intentional or negligent release of trade secret information by the contractor and its employees.

(d) The department shall provide any information for which a trade secret claim is pending or has been approved to a physician or osteopath when such information is needed for medical diagnosis or treatment. The physician or osteopath who will receive confidential information shall be required to sign an agreement developed by the department protecting the confidentiality of the information disclosed. This agreement shall include a provision prohibiting the physician or osteopath from revealing the trade secret information to any person. Where feasible the employer shall be notified prior to disclosure of the information.

(e) Any person granted access to trade secret information pursuant to N.J.A.C. 7:1G-6.15 shall sign an agreement developed by the department protecting the confidentiality of the information prior to receipt of the information.

(f) Any person who receives trade secret information pursuant to this section shall take appropriate measures to protect the information from unauthorized disclosure which shall include, but not be limited to:

1. Keeping the information confidential from unauthorized persons;

2. Keeping any records containing trade secret information in a locked file cabinet or safe, when not in use;

3. Using the information only for the use approved by the department;

4. Not reproducing the trade secret information; and

5. Returning all material on which the trade secret information has been recorded to the department within 30 days or when finished using the information, whichever is sooner.

(g) For emergency public health or medical purposes, the department may waive the requirements of (b)1 (written request by State officer or employee), (b)2 (notice to employer prior to release of trade secret information), and (e) (signing a confidentiality agreement prior to receipt of trade secret information) above, and shall follow the procedures set forth in (g)1 and 2 below, if the department determines that waiver of said requirements is necessary to protect health or the environment against an unreasonable risk of injury to health or the environment or is necessary for an emergency medical diagnosis or treatment by a physician or osteopath.

1. If trade secret information is conveyed verbally, in person or by telephone, the contents of a confidentiality agreement developed pursuant to (e) above, shall be read to the persons receiving such information.

2. Any person receiving oral or written trade secret information pursuant to this subsection shall sign a confidentiality agreement developed pursuant to (e) above, within 72 hours of receipt of such information.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

N.J. Admin. Code § 7:1G-6.16 Penalties for unauthorized disclosure of trade secret information

(a) Any officer or employee of the State, contractor of the State, physician or osteopath, or employee of a county health department, county clerk, or designated county lead agency, local fire department, or local police department, or any other person who has access to any confidential information, and who willingly and knowingly discloses the confidential information to any person not authorized to receive it, is guilty of a crime of the third degree.

(b) Disclosure of trade secret information by any contractor or agent of the department or its employees in violation of the Act shall constitute grounds for debarment, suspension, and disqualification from contracting with the department.

History

• Amended by R.1993 d.386, effective 8/2/1993.
• See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

Subchapter 7 ISSUANCE OF ADMINISTRATIVE ORDERS AND NOTICES OF CIVIL ADMINISTRATIVE PENALTY ASSESSMENT

N.J. Admin. Code § 7:1G-7.1 Authority and scope

(a) This subchapter is promulgated to provide for the issuance of Administrative Orders and Notices of Civil Administrative Penalty Assessments and to establish a schedule and procedures for the assessment of Civil Administrative Penalties as provided in the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1 et seq., at N.J.S.A. 34:5A-31(a) and (b) and (d).

(b) Pursuant to N.J.S.A. 34:5A-31(a), the Commissioner or his or her designee is authorized to issue an Administrative Order and Notice of Civil Administrative Penalty Assessment whenever any employer is in violation of the Act or any rule or regulation promulgated pursuant to the Act. The Commissioner is authorized to issue a Civil Administrative Penalty of not more than $ 2,500 for each violation, and additional penalties of not more than $ 1,000 for each day during which a violation continues after the compliance date of an Administrative Order from the Commissioner to cease such violation pursuant to N.J.S.A. 34:5A-31(d).

(c) This subchapter shall govern the issuance of Administrative Orders and Notices of Civil Administrative Penalty Assessments for violations of the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1 et seq., or of any rule or regulation issued pursuant to this Act by the Department of Environmental Protection.

History

• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-7.2 Reserved

History

• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Definitions."

N.J. Admin. Code § 7:1G-7.3 Procedures for the issuance of Administrative Orders and Notices of Civil Administrative Penalties Assessments

(a) The Commissioner may issue an Administrative Order upon finding that an employer is in violation of N.J.S.A. 34:5A-1 et seq., or any rule or regulation adopted pursuant thereto. Such an order shall:

1. Specify the provision or provisions of the Act, the rule or regulation adopted pursuant thereto of which the employer is in violation;

2. Cite the action which caused the violation;

3. Require compliance with the provision of the Act or the rules or regulations adopted pursuant thereto of which the employer is in violation; and

4. Give notice to the employer of the right to an adjudicatory hearing on the matters contained in the order and specify the procedures for requesting an adjudicatory hearing.

(b) A Notice of Civil Administrative Penalty Assessment may be issued separately or as part of an Administrative Order issued pursuant to N.J.S.A. 34:5A-31(b) requiring the alleged violator to take necessary action to comply with the Worker and Community Right to Know Act or a rule or regulation issued pursuant to the Act. Such Notice shall include:

1. A reference to the section of the Act, rule, regulation or order violated;

2. A concise statement of the facts alleged to constitute a violation;

3. A statement of the amount of the administrative penalty to be imposed; and

4. A statement of the employer's right to an adjudicatory hearing and notice of the procedure for requesting an adjudicatory hearing.

(c) The alleged violator shall have 20 calendar days from receipt of the Administrative Order and/or Notice of Civil Administrative Penalty Assessment within which to deliver a written request for an adjudicatory hearing to:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

(d) The party requesting an adjudicatory hearing shall, in its request for a hearing, furnish the Department with the following:

1. A statement of the legal authority and jurisdiction under which the hearing or action to be taken is to be held;

2. A reference to the particular sections of the statutes and rules involved;

3. A short and plain statement of the matters of fact and law asserted; and

4. The provisions of the order or notice of assessment to which the party objects, the reasons for such objections, and any alternative provisions proposed.

(e) If a hearing request is not timely received by the Department, the Department shall deny the request.

(f) If a request is incomplete the Department may deny the hearing request. An additional 10 days to correct deficiencies in an incomplete filing may be granted by the Department.

(g) The adjudicatory hearing shall be held pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Practice Rules, N.J.A.C. N.J.S.A. 1:1-1 et seq.

(h) After an adjudicatory hearing, and upon finding that a violation has occurred, the Commissioner or his or her authorized representative may issue a final assessment of the amount of the penalty specified in the notice or such lesser amount as may be assessed pursuant to the provisions on compromise of N.J.S.A. 34:5A-31(d). If no hearing is requested or if the Department denies the request, the original Administrative Order and Notice of Civil Administrative Penalty Assessment becomes a final order upon the 21st calendar day following its receipt.

(i) Payment of an assessed civil administrative penalty is due when a final order is issued by the Commissioner or the notice becomes a final order. If the alleged violator fails to pay the penalty to the Department or to make acceptable arrangements to pay the penalty within a reasonable period of time thereafter, the Department may institute a civil action pursuant to N.J.S.A. 34:5A-31(e) for a civil penalty not to exceed $ 2,500 for each day during which the violation continues.

History

• Administrative change to (c).
• See: 23 N.J.R. 3325(b).
• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 N.J.R. 1631(a), 26 N.J.R. 200(a).
• Notice of readoption with technical change.
• See: 45 N.J.R. 2599(a).
• Administrative correction.
• See: 46 N.J.R. 75(a).

N.J. Admin. Code § 7:1G-7.4 Compromise of penalties

(a) At his or her discretion, the Commissioner or his or her authorized representative may compromise a penalty assessed pursuant to this subchapter in whole or part, in the following circumstances and on the following terms and conditions:

1. Upon the posting by the violator of a performance bond or similar form of security in an amount and upon terms deemed satisfactory by the Commissioner;

2. On the basis of mitigating or extenuating circumstances;

3. Upon any other terms or conditions acceptable to the Commissioner or his or her authorized representative;

4. Any other circumstances or conditions acceptable to the Department.

History

• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-7.5 Alternative remedies

Neither the issuance of an Administrative Order and Notice of Civil Administrative Penalty Assessment nor the payment of any such penalty shall be deemed to affect the availability to the Department of any enforcement provision provided for by N.J.S.A. 34:5A-31, or any other statute, in connection with the violation for which the assessment is levied.

History

• Amended by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).

N.J. Admin. Code § 7:1G-7.6 Reserved

History

• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Records of assessments".

N.J. Admin. Code § 7:1G-7.7 Penalties

(a) This section establishes penalties for violations of the Act and this chapter. Violations are identified as minor or non-minor in accordance with N.J.S.A. 13:1D-125 et seq.

(b) The following violations are non-minor:

1. Failure of an employer to complete and submit to the Department a Community Right to Know Survey for each facility covered by this chapter by March 1 of the year following the reporting year in accordance with N.J.A.C. 7:1G-3.1 and 5.1. The penalty for this violation is $ 1,000 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 1,000 per day.

2. Failure of an employer to report all EHSs as required under N.J.A.C. 7:1G-3.1 on the Community Right to Know Survey or Release and Pollution Prevention Report in accordance with N.JA.C. N.J.A.C. 7:1G-3.1, 4.1 and 5.1. The penalty for this violation is based on the number of substances omitted, and is $ 500.00 if 10 or fewer substances are omitted and is $ 1,000 if more than 10 substances are omitted.

3. Failure of an employer to transmit a copy of the Community Right to Know Survey for each covered facility by March 1 of the year following the reporting year to the local fire and police departments, local emergency planning committee, and the Right to Know County Lead Agency of the county in which the facility is located in accordance with N.J.A.C. 7:1G-3.1 and 5.1. The penalty for this violation is $ 500.00 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 100.00 per day.

4. Failure of an employer to provide on the Community Right to Know Survey all information listed at N.J.A.C. 7:1G-3.1(c)1 through 5 for each Environmental Hazardous Substance (EHS) that meets or exceeds the thresholds listed in N.J.A.C. 7:1G-3.1(b). The penalty for this violation is $ 1,000 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 1,000 per day.

5. Failure of an employer to retain a copy of the Community Right to Know Survey and/or Release and Pollution Prevention Report at each facility and make it available upon request to facility employees within five business days of the request in accordance with N.J.A.C. 7:1G-5.1. The penalty for this violation is $ 1,000 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 1,000 per day.

6. Failure of an employer to make available the Community Right to Know Survey and/or the Release and Pollution Prevention Report for the most recent Survey year to the Department, its local designees, or emergency responders in accordance with N.J.A.C. 7:1G-5.1. The penalty for this violation is $ 500.00 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 100.00 per day.

7. Failure to provide the environmental release, throughput, waste transfer and pollution prevention information required by the Environmental Survey in accordance with N.J.A.C. 7:1G-4.1(c) and any pollution prevention information required pursuant to the Pollution Prevention Act on the RPPR in accordance with N.J.A.C. 7:1G-4.1. The penalty for this violation is $ 1,000 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 1,000 per day.

8. Failure of an employer to submit to the Department information clarifying any statement made on the Community Right to Know Survey and/or Release and Pollution Prevention Report within 30 days of notification or subsequent date specified by the Department in accordance with N.J.A.C. 7:1G-5.2. The penalty for this violation is $ 500.00 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 100.00 per day.

(c) The following violations are minor:

1. Failure of an employer to submit to the Department a completed Release and Pollution Prevention Report by July 1 of the year following the reporting year in accordance with N.J.A.C. 7:1G-4.1 and 5.1. The penalty for this violation is $ 1,000 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 1,000 per day.

2. Failure of an employer to submit a copy of the completed Release and Pollution Prevention Report by July 1 of the year following the reporting year to the county lead agency of the county in which the facility is located in accordance with N.J.A.C. 7:1G-5.1. The penalty for this violation is $ 500.00 for each violation. The Department may assess an additional penalty for each day that the violation continues, in an amount not to exceed $ 100.00 per day.

(d) The Department shall provide a grace period of 30 days for any violation identified as minor under (c) above, provided the following conditions are met:

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 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; and

3. The person responsible for the violation has not been identified in a previous enforcement action by the Department as responsible for the same or a substantially same violation at the same facility within the preceding 12-month period.

(e) For any violation determined to be minor under (c) above and provided a grace period under (d) above, the following provisions apply:

1. The Department shall issue a notice of violation that:

i. Identifies the condition or activity that constitutes the minor violation and the specific statutory and regulatory provision or other requirement violated; and

ii. Specifies that a penalty may be imposed unless the minor violation is corrected and compliance is achieved within the specified grace period.

2. If the person responsible for the minor violation corrects the violation and demonstrates to the Department that compliance has been achieved within the specified grace period, the Department shall not impose a penalty for the violation.

3. If the person responsible for the minor violation fails to demonstrate to the Department that the violation has been corrected and compliance achieved within the specified grace period, the Department may, in accordance with the provisions of this subchapter, impose a penalty that is retroactive to the date the notice of violation under (e)1 above was issued.

History

• Repeal and New Rule, R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Penalty for time related violations".
• Amended by R.1994 d.349, effective 7/18/1994.
• See: 26 New Jersey Register 123(a), 26 New Jersey Register 2930(a).
• Amended by R.2005 d.27, effective 1/18/2005.
• See: 36 New Jersey Register 3376(a), 37 New Jersey Register 275(a).
• Rewrote the section.

N.J. Admin. Code § 7:1G-7.8 Reserved

History

• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Penalty for non-time related violations".

N.J. Admin. Code § 7:1G-7.9 Reserved

History

• Repealed by R.1994 d.3, effective 1/3/1994.
• See: 25 New Jersey Register 1631(a), 26 New Jersey Register 200(a).
• Section was "Daily penalty".

Chapter 1H COUNTY ENVIRONMENTAL HEALTH STANDARDS OF ADMINISTRATIVE PROCEDURE AND PERFORMANCE

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1H-1.1 Scope

Unless otherwise provided by rule or statute, the following shall constitute the rules of the Department of Environmental Protection concerning administrative procedures and environmental health standards pursuant to the County Environmental Health Act, N.J.S.A. 26:3A-21 et seq.

N.J. Admin. Code § 7:1H-1.2 Construction

These rules shall be liberally construed to permit the department and its component divisions to effectuate the purposes of the law.

N.J. Admin. Code § 7:1H-1.3 Purpose

(a) These rules are promulgated for the following purposes:

1. To set forth standards for the administration of environmental health programs by county health departments and certified municipal or regional health agencies;

2. To establish environmental health performance standards for the control of air pollution, solid waste, noise, and water pollution.

N.J. Admin. Code § 7:1H-1.4 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Where words and terms are used in standards which contain a citation to rules promulgated by the Department, the definitions of those words and terms will be the same as the definitions found in those Department rules.

"Air pollution" means the presence in the atmosphere of one or more air contaminants of any composition whatsoever, in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property within any portion of this State.

"Certified local health agency" means a local health agency that the Department certifies has satisfied the environmental health standards of administrative procedure and all applicable environmental health performance standards of this chapter, whose certification has not been suspended, terminated or revoked.

"Commissioner" means the Commissioner of Environmental Protection.

"County department" means a county department of health established pursuant to P.L. 1975, c.329 (N.J.S.A. 26:3A2-1 et seq.) as amended and supplemented, with the purpose of providing environmental health programs throughout the county.

"Department" means the Department of Environmental Protection.

"Environmental health" means those health and environmental programs relating to the control of air pollution, solid waste, noise and water pollution.

"Environmental indicators" means direct or indirect measures of environmental quality that are used to assess the status and trends of environmental conditions.

"Hazardous substances" means such elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum degree possible with, and which shall include, the list of hazardous substances adopted by the Federal Environmental Protection Agency pursuant to Section 311 of the Federal Water Pollution Control Act Amendments of 1972 as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., and the list of toxic pollutants designated by Congress or EPA pursuant to Section 307 of that act; provided however, that sewage and sewage sludge shall not be considered as hazardous substances for the purposes of these rules.

"Interlocal services agreement" means a written contract that is executed between two local units for the joint provision of a service within their area of jurisdiction, pursuant to the Interlocal Services Act, N.J.S.A. 40:8A-1 et seq.

"Leachate" means a liquid that has been in contact with solid waste and contains dissolved or suspended materials from that solid waste.

"Local health agency" means any regional or municipal governmental agency organized for the purpose of providing health services and certified pursuant to these regulations.

"Major stationary source" means any stationary facility or source of air pollutants which directly emits, or has the potential to emit, 100 tons per year or more of any air pollutant.

"Monitor" means check, test, observe, survey or inspect to determine compliance with environmental health standards.

"National Environmental Performance Partnership System (NEPPS) Performance Partnership Agreement (PPA)" means the document which describes the joint United States Environmental Protection Agency and Department system that emphasizes results-based management through the development of long-term environmental goals, milestones and use of environmental indicators as measures of progress. These goals, milestones and indicators are articulated in a plan called a "Performance Partnership Agreement." A copy of this document may be obtained from the Department's Web Page on the Internet at http://www.state.nj.us/dep/dsr or by contacting the Department's Division of Science, Research and Technology at (609) 984-6071.

"Noise" means any sounds of such level and duration as to be or tend to be injurious to human health or welfare, or which would unreasonably interfere with the enjoyment of life or property throughout the State or in any portions thereof, but excludes all aspects of the employer-employee relationship concerning health and safety hazards within the confines of a place of employment.

"Solid waste" means garbage, refuse, and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activities, and shall include all other waste materials including liquids except for liquids which are treated in public sewage treatment plants and except for solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare and feed such wastes to swine on their own farms.

"Strategic Plan 1998-2001" means the Department plan which expresses its vision, mission, six broad environmental goals, selected milestones and new or enhanced strategies upon which the Department will focus to achieve these objectives. A copy of this document may be obtained from the Department's Web Page on the Internet at http://www.state.nj.us/dep or by contacting the Department's Office of Communications at (609) 292-3225.

"Toxic substances" means those pollutants, or combinations of pollutants including disease causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly or indirectly by ingestion through food chains, will, on the basis of information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformation, in such organisms or their offspring.

"Water pollution" means the presence in or upon the surface or ground waters of this State of one or more contaminants, including any form of solid or liquid waste of any composition whatsoever, in such quantities and duration as are, or tend to be, injurious to the human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property within any portion of the State.

History

• Amended by R.2000 d.317, effective 8/7/2000.
• See: 32 New Jersey Register 1670(a), 32 New Jersey Register 2864(d).
• Inserted "Certified local health agency", "Environmental indicators", "Interlocal services agreement", "National Environmental Performance Partnership System (NEPPS) Performance Partnership Agreement (PPA)" and "Strategic Plan 1998-2001".

Subchapter 2 ENVIRONMENTAL HEALTH STANDARDS OF ADMINISTRATIVE PROCEDURE

N.J. Admin. Code § 7:1H-2.1 Provision of environmental health services

(a) The 19 existing county departments of health and any local health agency certified by the Commissioner of Environmental Protection pursuant to the procedures contained herein shall provide, or arrange for the provision of, environmental health services which meet the performance and administrative standards authorized herein. Every county health department and every certified local health agency is eligible for the receipt of such grants in aid for the provision of environmental health services as may become available to the Commissioner for distribution.

(b) A certified local health agency shall submit a county-wide environmental health assessment and improvement plan to the Department by November 1 of each year. The plan shall include, but not be limited to, the following elements:

1. A description of the environmental problems or issues in the county, including environmental indicators, if available, and socio-demographic characteristics;

2. An evaluation of existing resources, including personnel, equipment and funding sources to carry out delegated responsibilities;

3. A review of environmental health partnerships between the certified local health agency and other local units, a description of the respective roles of each unit and whether interlocal services agreements have been executed;

4. Recommendations for environmental health activities to be undertaken during the upcoming grant cycle that are aligned with the Department's priorities as set forth in the Strategic Plan and NEPPS performance partnership agreement; and

5. Identification of any environmental health service gaps between the Department's priorities and the certified local health agency's priorities and/or emerging environmental issues at the county level and recommendations on how to address such issues.

(c) The Department shall review the county-wide environmental health assessment and improvement plan to identify delegated environmental activities to be undertaken by the certified local health agency in the upcoming grant cycle, and shall use this plan as a guide in apportioning grant monies to the certified local health agencies in accordance with (e) below.

(d) The Department shall conduct a grant conference each calendar year to discuss the Department's environmental priorities, as specified in the Strategic Plan and the NEPPS performance partnership agreement as well as emerging critical priorities established by the Department, which are relevant to the provision of environmental health services by certified local health agencies. Each certified local health agency shall have a representative attend this grant conference. Notice of the grant conference shall be made by means of a public notice published in the New Jersey Register.

(e) The Department shall apportion the monies available for grants among the certified local health agencies and establish delegated activities and output numbers based upon the following factors:

1. The extent to which the Department determines that the environmental activities to be funded are aligned with the Strategic Plan and the NEPPS performance partnership agreement and further the Department's goals and priorities as set forth therein;

2. The extent to which the Department determines that each county's recommendations regarding delegated activities to be undertaken, as identified in its county-wide environmental health assessment and improvement plan, are appropriate and serve to further the Department's goals and priorities as set forth in the Strategic Plan and NEPPS Performance Partnership Agreement;

3. The certified local health agency's record of satisfying its obligations as specified in the annual CEHA grant agreements executed with the Department; and

4. The certified local health agency's funding needs to undertake delegated environmental activities.

History

• Amended by R.2000 d.317, effective 8/7/2000.
• See: 32 New Jersey Register 1670(a), 32 New Jersey Register 2864(d).
• Rewrote the section.

N.J. Admin. Code § 7:1H-2.2 Duties and powers

(a) The county department and local health agency shall investigate citizen complaints and provide public information and citizen education services in all matters concerning environmental health. The county department and local health agency shall monitor the various State statutes, rules and regulations concerning environmental health; shall report any violations of said statutes, rules and regulations to the department for enforcement; shall gather evidence of said violations as required; and shall provide witnesses for any resultant court action as needed. The county department and local health agency may maintain an action in a court of competent jurisdiction against any other person to enforce, or to restrain the violation of, any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment as provided in the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.

(b) The county department may operate a technical resource center for environmental health services to provide:

1. Training programs for public and private persons or groups concerned with environmental health;

2. Laboratory services for analyzing materials to determine compliance with environmental health standards;

3. Technical assistance;

4. Library services;

5. Data collection and exchange services, concerning the results of all monitoring activities within the county; and

6. Any other function or service deemed necessary to effectuate the purpose of the County Environmental Health Act. The technical resource center may be established at the county college, if any, within the county.

N.J. Admin. Code § 7:1H-2.3 Work program to meet standards

(a) A county department or a lead agency designated pursuant to this section shall, within 15 months of the promulgation of these standards and by September 1 of each succeeding year, prepare a work program for meeting the standards and submit it to the department. The work program shall be submitted to each municipality located in the county for review and comment prior to its submittal to the department. The work program shall:

1. Provide a detailed description of program elements;

2. Delineate responsibilities for program implementation within the county;

3. Identify the personnel and their qualifications to provide the services;

4. Identify the resources required to meet the program objectives;

Provide a time schedule for achieving full program implementation; and

6. In succeeding years, provide a report of accomplishments of the preceding year.

(b) During the preparation of the work program the county department or designated lead agency shall consult with all other interested public or private agencies, including any existing environmental commissions.

(c) In any county without a county department, the designated lead agency shall prepare a work program as required in this section, which work program shall have the approval of the county association of health officers of that county. The county governing body shall designate a lead agency within 90 days of the effective date of these standards. If the county governing body does not designate a lead agency in 90 days, the department shall designate a lead agency. The county governing body may pay the administrative costs of any designated lead agency. The lead agency shall be one of the following:

1. The local health agency serving the largest number of municipalities in the county; or

2. A regional health commission, existing in the county, formed for the provision of one or more environmental health services and open to the membership of any municipality located within the county; or

3. A local health agency chosen by the county association of health officers; or

4. The county governing body, if that body chooses to act and if that body employs a full time County Environmental Health Coordinator who shall be a licensed Health Officer.

(d) In any county without a county department the county governing body shall prepare within 90 days of the effective date of these regulations a detailed report designating a lead agency and indicating the manner in which health services meeting the performance and administrative standards set forth herein shall be provided for the territorial area of the county. Such report shall include a description of the administrative organization for providing the environmental health services and such other information as may be required by the commissioner.

1. Within 30 days following the completion of the report, the county governing body shall conduct a public hearing to receive public comment concerning the contents of the report. Notice of the public hearing shall be published at least 15 days prior to that hearing in a newspaper circulated throughout the county. Within 30 days following the completion of the public hearing the county governing body shall give due consideration to the comments presented at the public hearing and may revise the report accordingly.

2. A copy of the revised report shall be submitted to the Commissioners of Environmental Protection and Health within 150 days of the promulgation of these standards.

3. A detailed report shall also be prepared by each county governing body and submitted to the department by December 1 of each succeeding year. If any such county governing body approves the work program of the lead agency in any succeeding year it may submit that work program as its detailed report.

(e) A county department or designated lead agency shall consult with each local health agency located in that county in the development and implementation of the work program required by this section.

N.J. Admin. Code § 7:1H-2.4 Certification of local health agency

Any municipal or regional health agency which is presently providing environmental health services which meet the administrative and performance standards set forth herein and which is willing to coordinate its environmental health programs with those of its neighbors by implementing the work program of the county department or the designated lead agency, may petition the commissioner for certification and upon certification become the authorized local health agency for the performance of one or more environmental health services within its jurisdiction, if said agency serves a minimum population of 25,000. A contractual relationship whereby one municipality provides environmental health services to one or more other municipalities located in the same county will be certified as a regional health agency if the provisions of these standards are met.

N.J. Admin. Code § 7:1H-2.5 Personnel standards

(a) Every county department and local health agency shall provide environmental health services under the direction of a full-time employee trained and experienced in managing environmental health services. Each such department or agency shall be administered by a full-time health officer, provided however, that the existing administrator or a commission formed for the provision of one or more environmental health services need not be a health officer to continue as administrator of that commission.

(b) No county department or local health agency shall appoint any person to fulfill the duties of a sanitary inspector who is not a licensed sanitary inspector. Every employee of a county department or of a local health agency shall be qualified by experience and education to perform the environmental health services for which the employee is hired. Employees performing duties which, by the complexity of their nature, require a degree in the physical, chemical, biological or environmental sciences or engineering shall have such a degree.

Subchapter 3 ENVIRONMENTAL HEALTH PERFORMANCE STANDARDS

N.J. Admin. Code § 7:1H-3.1 Performance standards for conducting an air pollution control program

(a) Enact and enforce a local air pollution control ordinance at least equivalent to the current model ordinances prepared by the department.

(b) Control and prohibit open burning pursuant to N.J.A.C. 7:27-2; investigate and document those violations referred by the department; monitor all approved burning permits for infested plant life, hazardous material, herbaceous plant life, orchard pruning and emergencies.

(c) Control and prohibit smoke from combustion of fuel pursuant to N.J.A.C. 7:27-3; investigate and record all smoke violations including complaints referred to the county department or local health agency by the department.

(d) Control and prohibit solid particles from combustion of fuel pursuant to N.J.A.C. 7:27-4; investigate and record violations; furnish assistance to the department when corrective action can not be taken by the county department or local health agency.

(e) Prohibit air pollution, pursuant to N.J.A.C. 7:27-5; investigate complaints, furnish assistance to the department when corrective action can not be taken by the county department or local health agency.

(f) Control and prohibit particles or emissions of sulfur from manufacturing processes, pursuant to N.J.A.C. 7:27-6, 7:27-7 and 7:27-3; record and prosecute Ringelmann or opacity violations, refer suspected violations of the mass emissions standard to the department for necessary action.

(g) Provide assistance to the department in the administration of N.J.A.C. 7:27-8; conduct initial investigations and follow-up inspections for the renewal of permanent certificate to operate equipment, as designated by the department; notify the department of any installation, alteration or operation of any equipment or control apparatus requiring a permit and certificate.

(h) Take liquid fuel samples as directed by the department in connection with the administration of N.J.A.C. 7:27-9.

(i) Control and prohibit emissions from incinerators pursuant to N.J.A.C. 7:27-11.3(b), (c), and (d); refer suspected violations of the mass emission standard to the department for necessary action.

(j) Administer air pollution emergency procedures pursuant to N.J.A.C. 7:27-12; monitor standby plans for facilities, as directed by the department.

(k) Control and prohibit air pollution by volatile organic substances pursuant to N.J.A.C. 7:27-16; inventory all facilities storing volatile organic substances; record and report violations of the standards concerning the storage and transfer of volatile organic substances.

(l) Control and prohibit air pollution form asbestos surface coatings and toxic substances pursuant to N.J.A.C. 7:27-17; inspect new construction and reconstruction sites and new or altered sources for compliance; record and report violations to the department.

(m) Observe and report all violations at each major stationary source as requested by the department.

(n) Respond to all emergency situations involving threats to public health or safety occurring within the county department or local health agency's jurisdiction and assist department personnel as required.

(o) Update emissions inventory data as requested by the department.

(p) Personnel must complete the course "Fundamentals of Air Pollution Practice" or equivalent training approved by the department, complete the course "Visual Emissions Evaluation Certification," and must maintain visual emissions certification by completing the course "Recertification of Visual Emissions Evaluation" every six months.

N.J. Admin. Code § 7:1H-3.2 Performance standards for conducting a noise control program

(a) Enact and enforce a local ordinance containing as a minimum provisions at least equivalent to sections 6.1 and 6.2 in the "Example Community Noise Control Ordinance." Additional provisions based upon local problems shall be added as needed.

(b) Monitor and enforce compliance with N.J.A.C. 7:29.

(c) Obtain or otherwise provide at least one sound level meter, calibrator, tripod and windscreen. Sound level meters shall meet ANSIS-1.4 (1977) specifications or the most recently completed revision thereof. The calibrator shall be calibrated at least annually by a certified facility.

(d) Personnel must be certified by successful completion of a noise control course approved by the department and must be recertified at least every two years in the operation of sound level meters.

N.J. Admin. Code § 7:1H-3.3 Performance standards for conducting a hazardous substance control program

(a) All activity relating to spill control shall be conducted in accordance with the Discharges of Petroleum and Other Hazardous Substances, N.J.A.C. 7:1E, and the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.

(b) Investigate reports of spills and other releases into the environment of oil, petroleum products and other hazardous substances from any source or cause, including pipeline or tank ruptures, train derailments, highway accidents, deliberate illegal dumping of waste (whether free-flowing or drummed), leachate from landfill or abandoned dump sites, releases from industrial sites, and the appearance of toxic pollutants in well water. Immediately report in a manner prescribed by the department, all such incidents to the department, along with an account of actions already taken.

(c) In cooperation with the department, participate in the removal of certain designated hazardous substances, including petroleum products, which have been spilled, and in the taking of measures to prevent damage to public health, safety, welfare or the environment resulting from spills, and receive reimbursement for such activity where authorized under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. Act as on-scene coordinator unless the department indicates it will perform that function. When authorized by the department to act as on-scene coordinator, take charge of removal activities, and report on the measures taken and the results of the measures to the department. When the department acts as on-scene coordinator, give assistance to the department.

(d) Investigate spill incidents in order to determine: the quantity of material released into the environment; the probable impact on public health and natural resources; the causes, persons responsible, and any other information needed to establish the seriousness of the incident; the remedial measures needed; and the identities of persons who may be liable for costs and damages. Make available to the department and the Administrator of the New Jersey Spill Compensation Fund all information and evidence obtained from such investigations. In the event the State brings legal action, investigators and their evidence shall be available to appear in court and pretrial proceedings.

(e) Bring legal action against persons responsible for causing spills, by exercising the power to enforce environmental laws as provided in the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., when requested by the department.

(f) Claims for reimbursement of expenses incurred for activity related to the removal of spills of hazardous substances, or the prevention or mitigation of damages arising from such spills, as authorized by the department, shall be presented to the Administrator of the New Jersey Spill Compensation Fund through the department.

N.J. Admin. Code § 7:1H-3.4 Performance standards for conducting a solid waste control program

(a) Monitor compliance with the rules and regulations of the department concerning the operation of solid waste facilities and the activities of solid waste collectors and haulers. Report the results of such monitoring to the department for departmental enforcement or for local enforcement with the assistance of the department.

(b) Enforce the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. by identifying violators and by collecting penalties. All enforcement efforts shall be coordinated with the department to obtain consistent enforcement and to preclude duplication of effort.

(c) Identify and prosecute illegal or promiscuous solid waste dumping, in violation of N.J.A.C. 7:26-2.2.

(d) Assure limitation of landfill working face width to 150 feet pursuant to N.J.A.C. 7:26-2.5.

(e) Assure limitation of landfill lift height to 12 feet pursuant to N.J.A.C. 7:26-2.5.

(f) Assure that no solid waste is disposed in contact with surface or ground water pursuant to N.J.A.C. 7:26-2.5.

(g) Assure control of landfill litter, pursuant to N.J.A.C. 7:26-2.5.

(h) Assure adequate dust control at landfills, pursuant to N.J.A.C. 7:26-2.5.

(i) Assure control of landfill odors pursuant to N.J.A.C. 7:26-2.5.

(j) Assure the covering of all exposed waste surfaces at landfills pursuant to N.J.A.C. 7:26-2.5.

(k) Assure maintenance of cover thickness and stability pursuant to N.J.A.C. 7:26-2.5.

(l) Assure that only vehicles registered with the department and properly displaying their Solid Waste Numbers are allowed to haul or dispose of solid waste pursuant to N.J.A.C. 7:26-2.5 and N.J.A.C. 7:26-3.2.

(m) Assure covering of all septic tank and other fecal wastes pursuant to N.J.A.C. 7:26-2.6 and N.J.A.C. 7:14-5.1 et seq. at those landfills which are permitted to receive such wastes.

(n) Assure that bulky waste items are not allowed to protrude through final cover or the side slopes of a landfill pursuant to N.J.A.C. 7:26-2.6.

(o) Assure proper notice to local fire and police offices in the case of a landfill fire pursuant to N.J.A.C. 7:26-2.8.

(p) Assure that no waste disposal activities occur in the vicinity of a landfill fire as prohibited by N.J.A.C. 7:26-2.8.

(q) Assure compliance with general operational requirements for incinerators, transfer stations, processing facilities and resource recovery facilities pursuant to N.J.A.C. 7:26-2.11.

(r) Assure that no landfill disposal activities occur within 50 feet of a landfill property boundary pursuant to N.J.A.C. 7:26-2.12.

(s) Monitor and assure compliance with the collection and haulage requirements in N.J.A.C. 7:26-3.

(t) Personnel performing solid waste inspections, as identified in the standards described above, shall be trained by the department, through the arrangement of joint inspections with departmental inspectors, experienced in solid waste facility inspection. It shall be the responsibility of the county department or local health agency to arrange such joint training inspections.

(u) Assure that the type of waste disposed of at a land fill is in compliance with the type of waste identified in the landfill registration statement.

(v) Fees for enforcement activities may be charged and collected from the owner or operator of any sanitary landfill facility in accordance with N.J.A.C. 7:26-4.10.

History

• As amended, R.1983 d.50, eff. 3/7/1983.
• See: 14 New Jersey Register 1328(a), 15 New Jersey Register 330(d).
• (v) added.

N.J. Admin. Code § 7:1H-3.5 Performance standards for the provisions of public health laboratory services

(a) Laboratories providing the county department or local health agency with services for the analysis of potable water must hold a laboratory certification issued by the department pursuant to N.J.A.C. 7:10-8.1.

(b) Laboratories providing the county department or local health agency with services for the analysis of wastewater, sludge and any other ground or surface water must have been granted interim approved by the department until such time as the department shall require laboratory certification for provision of these services.

N.J. Admin. Code § 7:1H-3.6 Performance standards for conducting a potable water supply control program

(a) Examine plans, issue certificates and permits and assure that water samples from newly constructed or altered non-public and public non-community potable water supply systems conform to requirements not less stringent than those of the current Standards for the Construction of Public Non-Community and Non-Public Water Systems, N.J.A.C. 7:10-12.

(b) Advise the department of new non-community public water systems that are approved.

(c) Inspect non-public water supply systems, collect samples and provide for laboratory analysis of water when there is reason to believe that the supply may be contaminated or open to contamination.

(d) Encourage the collection of bacteriological samples at least four times per year from non-public water systems other than those serving single dwellings, in accordance with the provisions of N.J.A.C. 7:10-7.3(d).

(e) Participate upon request of the department in special sampling of public and non-public water systems.

(f) Advise consumers of public water systems of Boil Water Orders imposed by the department when requested by the latter to do so.

(g) Implement bans on additional connections to public community water systems that cannot provide safe and adequate service to consumers, upon the request of the department.

(h) Confer with the local plumbing code official and survey premises served by non-public and public water systems for plumbing cross-connections not in compliance with the Plumbing Sub-Code, N.J.A.C. 5:23-3.5, of the New Jersey Standard Construction Code and, where found, secure abatement of such plumbing cross-connections.

(i) Assure that premises are surveyed for unapproved physical connections between public community water systems and public non-community or non-public water systems; assure removal of such unapproved physical connections or installation of approved physical connections is required in accordance with N.J.S.A. 58:12A-1 et seq. and N.J.A.C. 7:10.

(j) Perform, or assure the performance of, initial inspection, quarterly pressure tests and annual internal inspections of approved physical connection devices and certify all results of such inspection concerning compliance with N.J.S.A. 58:12A-1 et seq. and N.J.A.C. 7:10.

(k) Maintain, or assure the maintenance of, records of all certificates, inspections, sampling analyses and actions taken relating to non-public or public water systems, cross-connections, and physical connections.

(l) Where violations of applicable statutes or regulations are discovered, take appropriate enforcement action under the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.

N.J. Admin. Code § 7:1H-3.7 Performance standards for conducting a ground water pollution control and on-site sewage system management program

(a) Provide separately, or in cooperation with any other designated on-site sewage management agency, to the extent permitted by law, for:

1. Periodic inspection of the maintenance and operation of on-site sewage disposal systems;

2. Periodic bacteriological testing of water from selected individual or non-public potable water wells serving realty improvements which are also served by such systems;

3. The removal of the contents or the repair of such systems when inspections indicate the necessity of those actions in order to prevent or abate a violation of N.J.A.C. 7:9-2.1; and

4. Control of the health aspects of the activity of removing and transporting sewage from such systems to treatment or disposal sites approved by the department.

(b) Examine plans, issue certificates and permits, and inspect new and repaired residential and commercial on-site sewage disposal systems, as identified in N.J.A.C. 7:9-2.1 et seq., to ensure that they conform to state law and the current edition of the Standards for the Construction of Individual Subsurface Sewage Disposal Systems.

(c) Approve plans and inspect individual sewage disposal systems receiving industrial wastes for conformance with N.J.A.C. 7:9-2.8 with the approval of the department.

(d) Maintain a file of all plans, certificates, inspections and enforcement actions taken pertaining to residential, commercial, and industrial individual sewage disposal systems.

(e) Investigate nuisances and public health hazards caused by malfunctioning residential, commercial and industrial individual sewage disposal systems; take necessary enforcement action pursuant to N.J.S.A. 26:3-45 et seq., the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., or local ordinances.

(f) Determine problem areas through a sanitary survey to include physical inspection and indirect methods such as geophysics or dye testing; accumulate evidence of the need for a public sewage collection system or for an individual sewage disposal system management program.

(g) Insure that the treatment and disposal of septage is conducted in an environmentally sound manner in accordance with applicable provisions of law.

(h) Conduct a groundwater monitoring program designed to establish baseline conditions, provide early detection of pollution, and identify existing pollution sources.

(i) Sampling of groundwater shall be conducted in compliance with the department's Field Procedures Manual for Data Acquisition.

(j) Inventory actual or potential groundwater pollution sources including, where applicable:

1. Landfills and dumps;

2. Holding ponds and waste disposal pits;

3. Municipal and industrial water lagoons;

4. Chemical stockpiles;

5. Fuel tank farms;

6. Injection wells and seepage pits for waste disposal;

Feedlots;

8. Areas of known or suspected saltwater intrusion;

9. Areas of land application of sewage, sludge or septage.

(k) Maintain a current file on each actual or potential source of groundwater pollution. The files shall contain data on each source identified, including:

1. Name of person or corporation responsible for discharge;

2. Name of owner of land on which discharge originates (if different from above);

3. Location and mailing address of discharger;

4. General nature of discharge. (For example, source, as listed in subsection (j) of this section, or industrial classification of source.)

(l) Provide the department and interested local governments with data on actual and potential ground-water pollution sources to supplement the department's monitoring efforts. Actual instances of ground water pollution shall be reported to the department immediately.

(m) Report citizen complaints concerning ground water pollution to the department and participate, upon request of the department, in the investigation of such complaints.

N.J. Admin. Code § 7:1H-3.8 Performance standards for conducting a surface water pollution control program

(a) Plan, implement and enforce a surface water pollution control program, comprising the elements listed below, based upon the objectives contained in the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq. and the Areawide Water Quality Management Plan adopted pursuant to the New Jersey Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq.

(b) Survey streams, according to an annually established priority list, to locate outfall pipes and other sources of discharge of sewage or industrial waste into surface waters.

(c) Determine point and nonpoint sources of surface water pollution through physical inspection and dye testing.

(d) Annually, or more often as indicated, provide the department with data on the surface water pollution sources investigated, including:

1. Name of person or corporation responsible for discharge;

2. Location and mailing address of discharger;

3. Body of water receiving discharge;

4. Location of discharge into the body of water (including map);

5. General nature of discharge. (For example, municipal, industrial classification, or NPDES/NJPDES permit numbers as supplied by the department.)

(e) Maintain a current file on each source of surface water pollution. The files shall contain an identification of the agency responsible for the control of the source, to be determined after consultation with the department.

(f) Report citizen complaints concerning surface water pollution to the department and participate upon request of the department, in the investigation of such complaints.

(g) Conduct an ambient surface water quality monitoring program designed to supplement the data collected in the water quality management planning process, the primary monitoring network, and other department monitoring activities.

(h) Conduct special surveys of stream segments, lakes, and estuaries according to an annually established priority list. Special surveys shall be designed to supplement those carried out by the department, and to establish cause and effect relationships between nonpoint sources of pollution and surface water quality.

(i) Sampling of surface waters shall be conducted in compliance with the department's Field Procedures Manual for Data Acquisition.

Chapter 1I PROCESSING OF DAMAGE CLAIMS PURSUANT TO THE SANITARY LANDFILL FACILITY CLOSURE AND CONTINGENCY FUND ACT

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1I-1.1 Purpose and scope

(a) This chapter constitutes the rules of the Department concerning the processing of all claims under the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq. (the "Act"), for damages proximately resulting from the improper operation or improper closure of a sanitary landfill facility, pursuant to the Act, including Department procedures for review and decision making regarding such claims.

(b) This chapter is promulgated for the following purposes:

1. To implement the purposes and objectives of the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq.;

2. To establish rules for administration of the Sanitary Landfill Facility Contingency Fund, established pursuant to the Act, for the purpose of providing prompt and adequate compensation for damages as defined herein; and

3. To protect and ensure that the taxes credited to the Fund are spent in a proper manner and for the intended purposes.

History

• Amended by 56 N.J.R. 373(a), effective 3/4/2024

N.J. Admin. Code § 7:1I-1.2 Construction and applicability

(a) This chapter shall be liberally construed to allow the Department to fulfill the purposes of the Act concerning claims for compensation for damages proximately resulting from the improper operation or improper closure of a sanitary landfill facility. This chapter shall be construed in conformity with, and not in derogation of, the Act.

(b) This chapter shall apply to the processing of all claims which have not been paid, settled, denied or the subject of a final decision by the Commissioner of the Department on or before February 22, 1994, notwithstanding the date upon which any such claim was filed with the Department.

N.J. Admin. Code § 7:1I-1.3 Severability

If any subchapter, section, subsection, provision, clause, or portion of this chapter, or the application thereof to any person is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the subchapter, section, subsection, provision, clause, portion, or application directly involved in the controversy in which such judgment shall have been rendered and it shall not affect or impair the remainder of this chapter or the application thereof.

N.J. Admin. Code § 7:1I-1.4 Delegation

The Department may delegate administrative, supervisory, or investigatory authority to members of the Department's staff. The Department may enter into contracts on behalf of the Fund or the Department for the performance of services ancillary to the powers and duties of the Department under the Act, including, but not limited to, the performance of claims adjustment services.

N.J. Admin. Code § 7:1I-1.5 Definitions

The following words and terms, when used in this chapter, shall have the following meanings. Where words and terms are used which are not defined herein, the definitions of those words and terms will be the same as the definitions found at N.J.A.C. 7:26-1.4.

"Act" means the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq.

"Claim" means the claim for damages filed with the Department for recovery from the Fund. The claim includes all documents submitted under this chapter in support of the claim, including without limitation any amendments thereto under N.J.A.C. 7:1I-3.4.

"Claimant" means the person filing a claim.

"Closure" means all activities and costs associated with the design, purchase, construction or maintenance of all measures required by the Department, pursuant to law, in order to prevent, minimize or monitor pollution or health hazards resulting from sanitary landfill facilities subsequent to the termination of operations at any portion thereof, including, but not necessarily limited to, the costs of the placement of earthen or vegetative cover, the installation of methane gas vents or monitors and leachate monitoring wells or collection systems at the site of any sanitary landfill facility, and the cost of general liability insurance, including environmental impairment liability insurance, or an amount sufficient to create a self-insurance fund as may be determined by the Board of Public Utilities pursuant to section 10 of P.L. 1981, c.306 (N.J.S.A. 13:1E-109), to fund potential claims against the owner or operator of the sanitary landfill facility during the closure and post-closure period.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Covenant not to sue" means a covenant pursuant to N.J.S.A. 58:10B-13.1 or 13.2.

"Damages" means and includes, but is not limited to, the following:

1. The cost of restoring, repairing or replacing any real or personal property damaged or destroyed;

2. The diminution in fair market value of any real property where such diminution can be shown by a preponderance of the evidence to have solely resulted from the improper operation or improper closure of a sanitary landfill facility. Any property valuation calculations made for the purpose of this chapter shall expressly take into consideration any and all other factors which directly or indirectly affect the fair market value of the property;

3. The cost of any personal injuries, including any medical expenses incurred and income lost as a result thereof; and

4. The costs of the design, construction, installation, operation and maintenance of any device or action deemed necessary by the Department to clean up, remedy, mitigate, monitor or analyze any threat to the environment and public health, safety or welfare of the citizens of this State, including the installation and maintenance of methane gas monitors and vents and leachate monitoring wells and collection systems, and the sampling and analysis of any public or private potable water supply.

5. Damages do not include legal fees incurred in filing claims or for participation in an administrative hearing or any legal action against the Fund and costs normally associated with the listing, sale and transfer of property which is the subject of a claim. Additionally, damages do not include interest on any monetary award assessed against the Fund.

"Department" means the New Jersey Department of Environmental Protection.

"Discovery" means the time at which the claimant discovers, or by the exercise of reasonable diligence and intelligence should have discovered, that he or she has incurred damages.

"Disposal" or "disposed" means the use of the term which is expressly discussed and defined at N.J.S.A. 13:1E-3.

"Engineering controls" means any physical mechanism defined as such pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

"Final remediation document" means a document defined as such pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, at N.J.A.C. 7:26C-1.3.

"Fund" means the Sanitary Landfill Facility Contingency Fund established pursuant to the Act.

"Government entity" means a governing body, department, agency, authority or any other unit of any Federal, State, county or local government or governments, including without limitation a municipal utilities authority.

"Improper operation" or "improper closure" of a sanitary landfill facility means the operation or closure of a sanitary landfill facility that results in a substantial deviation from applicable operation and closure requirements. A de minimis deviation from such applicable operation and closure requirements shall not constitute grounds for a determination that a sanitary landfill facility is being improperly operated or has at any time been improperly closed. A finding of improper operation or improper closure shall only be made upon the basis of a preponderance of the evidence being introduced by the claimant.

"Institutional controls" means a mechanism defined as such pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

"Notice of Intent," or "NOI," means a notice issued by the Department to a claimant pursuant to N.J.A.C. 7:1I-5.4, informing the claimant that the Department intends to pay or deny his or her claim.

"Owner or operator" means and includes, in addition to the usual meanings thereof, every owner of record of any interest in land whereon a sanitary landfill facility is located, has been located, had been located or at any time was located, and any person or corporation which owns a majority interest in any other corporation which is the owner or operator of any sanitary landfill facility and every person who operates or operated a sanitary landfill facility at any point in time and every agent or representative of such operator.

"Person" means any public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, individuals, the United States, the State of New Jersey and any of its political subdivisions or agents.

"Physical intrusion" means the existence of methane gas, leachate or other material emanating from the sanitary landfill facility on or under a claimant's real property.

"Potable water" means drinking water, water for other personal uses, and water for purposes requiring a supply of water which the Department determines is suitable for human consumption pursuant to the Safe Drinking Water regulations set forth at N.J.A.C. 7:10. "Potable water" does not include water for use in fire fighting or for agricultural purposes, or for other non-potable purposes.

"Responsible party" means any person who directly or indirectly contributed at any point in time to the occurrence, event, action or damages upon which any person's claim or other claims are based.

"Sanitary landfill facility" means a governmentally approved solid waste facility at which solid waste is deposited, or has ever been deposited, on or in the land as fill for the purpose of permanent disposal or storage for a period exceeding six months, except that it shall not include any waste facility approved for disposal of hazardous waste.

"Solid waste" means the use of the term which is expressly discussed and defined at N.J.S.A. 13:1E-3(a).

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In "Closure" substituted a reference to the Board of Public Utilities for a reference to the Board of Regulatory Commissioners; in "Commissioner", substituted a reference to the Commissioner of the Department of Environmental Protection for a reference to the Commissioner of Environmental Protection and Energy in the State Department of Environmental Protection; inserted "Covenant not to sue", "Engineering controls", "Institutional controls" and "No further action letter"; rewrote "Person"; and in "Sanitary landfill facility", inserted ", or has ever been deposited," following "is deposited".
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• Rewrote definition "Covenant not to sue"; added definition "Final remediation document"; and deleted definition "No further action letter".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Amended by R.2010 d.174, effective 8/16/2010.
• See: 41 N.J.R. 2759(a), 42 N.J.R. 642(a), 42 N.J.R. 1860(a).
• In definition "Potable water", inserted ", or for other non-potable purposes".
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a) and 42 N.J.R. 1860(a).

N.J. Admin. Code § 7:1I-1.6 Liabilities for damages

(a) Every owner or operator of a sanitary landfill facility shall be jointly and severally liable for the proper operation and closure of the sanitary landfill facility, as required by law, and for any damages, no matter by whom sustained, proximately resulting from the operation or closure of the sanitary landfill facility.

(b) The Fund shall be strictly liable for all direct and indirect damages proximately resulting from the improper operation or improper closure of any sanitary landfill facility. The Fund shall not be liable for any damages resulting from the proper operation or proper closure of any sanitary landfill facility.

N.J. Admin. Code § 7:1I-1.7 Signatures; certifications

(a) All claims, and all affidavits required under this chapter, shall be signed by the claimant and notarized, as follows:

1. If the claimant or affiant is a corporation, the claim or affidavit shall be signed by a person authorized by a resolution of the claimant's board of directors to sign the document in question. The claimant or affiant shall submit with the document a copy of the resolution of the claimant's board of directors authorizing the person to sign the document. The copy of the resolution shall be certified as a true copy by the secretary of the corporation.

2. If the claimant or affiant is a partnership, the claim or affidavit shall be signed by a general partner of the partnership.

3. If the claimant or affiant is a sole proprietorship, the claim or affidavit shall be signed by the proprietor of the proprietorship.

4. If the claimant or affiant is a municipality, local unit, State, Federal or other public agency, the claim or affidavit shall be signed by a principal executive officer of such entity, the ranking elected official of such entity, or the designee of such principal executive officer or ranking elected official. If the claim or affidavit is signed by a designee, the claimant shall submit with the claim or affidavit a copy of the document authorizing the designee to sign the claim or affidavit.

5. If the claimant or affiant is a natural person, the claim or affidavit shall be signed by the claimant or affiant, provided however, that if the claimant or affiant is a minor, is incompetent as defined under New Jersey law, or is deceased, the claim or affidavit shall be signed by the claimant's parent, guardian, executor, or court appointed representative, as applicable.

(b) All claims, and all affidavits required by this chapter, shall contain the following certification, signed by the person required to sign the claim or affidavit:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted herein and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, to the best of my knowledge, I believe the information submitted is true, accurate and complete. I am aware that there are significant civil penalties for knowingly submitting false, inaccurate or incomplete information, and that I am committing a crime in the fourth degree if I make a written false statement which I do not believe to be true. I am also aware that if I knowingly direct or authorize the violation of any statute, I am personally liable for penalties."

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• Rewrote (b).

N.J. Admin. Code § 7:1I-1.8 Notices and other communications

(a) All claims, notices, requests, and other communications required or permitted under this chapter shall be given in writing and sent by certified mail, return receipt requested or by other means which provides a receipt showing the date of mailing and the date of delivery. All such communications sent to the Department by certified mail shall be sent to the following address:

Department of Environmental Protection

Environmental Claims Administration

PO Box 413

Trenton, New Jersey 08625-0413

(b) All such communications sent to the Department by means for which a street address is required by the carrier shall be sent to the following address:

Department of Environmental Protection

Environmental Claims Administration

401 East State Street

Trenton, New Jersey 08609

(c) All such communications to the claimant shall be sent to the mailing address set forth in the claim under N.J.A.C. 7:1I-3.3(a)3 unless the claimant directs otherwise under N.J.A.C. 7:1I-3.6.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (b), changed the street address.
• Amended by R.2010 d.174, effective 8/16/2010.
• See: 41 N.J.R. 2759(a), 42 N.J.R. 642(a), 42 N.J.R. 1860(a).
• In the address in (a), substituted "413" for "028" and "0413" for "0028".

N.J. Admin. Code § 7:1I-1.9 Computation of time

(a) In computing any period of time fixed by or under this chapter, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday.

(b) In computing any period of time fixed by or under any provision of this chapter, "days" shall mean calendar days, unless the provision specifies working days.

Subchapter 2 CLAIMS GENERALLY

N.J. Admin. Code § 7:1I-2.1 Persons who may submit a claim

Any person claiming to have incurred damages proximately resulting from the improper operation or improper closure of a sanitary landfill facility may submit to the Department a claim for such damages. No subrogee or assignee of a person who has incurred damages may submit a claim. No claim by a subrogee or assignee of a person who has incurred damages shall be eligible for compensation from the Fund.

N.J. Admin. Code § 7:1I-2.2 Burden of proof

(a) No claim shall be eligible for compensation from the Fund unless the claimant shows by a preponderance of the evidence that the claim satisfies all requirements for eligibility under the Act and this chapter, and that the amount of the claim correctly reflects and is reasonable in relation to the damages which the claimant has sustained. No claimant shall be entitled to payment from the Fund unless the claimant shows by a preponderance of the evidence that the damages sustained are a proximate result of the improper operation or improper closure of a sanitary landfill facility.

(b) A claimant shall affirmatively rebut any and all reasons for denial as stated in a Notice of Intent (NOI) to deny pursuant to N.J.A.C. 7:1I-5.4 or a Denial pursuant to N.J.A.C. 7:1I-5.5.

N.J. Admin. Code § 7:1I-2.3 Damages actually incurred; mitigation

(a) A claim shall be ineligible for compensation from the Fund unless the claimant has actually incurred the damages which are the subject of the claim. A claim shall be ineligible for compensation from the Fund to the extent that the damages which are the subject of the claim are contingent or speculative.

(b) A claim shall be ineligible for compensation from the Fund to the extent that the claimant has received compensation from any other source for damages which are the subject of the claim. The claimant shall exercise best efforts to obtain compensation from any other source from which compensation is reasonably likely to be available, including, without limitation, insurance policies, court awards, contractual rights, grants or other financial assistance from the Hazardous Discharge Site Remediation Fund, N.J.S.A. 58:10B-4, the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund, N.J.S.A. 58:10A-37.3 and any other remedies provided under statutory or common law. The Department may suspend processing of any claim pending the completion of the claimant's efforts to obtain compensation from such other sources. In determining the amount of an award, if any, the Department shall reduce the award by the amount of compensation already received by the claimant for the damage which is the subject of the claim.

(c) Claimants must fully disclose an award or settlement received or sought from any other source within 10 days of receiving compensation or within 10 days of seeking compensation from any other source. Failure to disclose such action shall result in denial of the claim.

(d) A claim involving the purchase and subsequent sale of property near a sanitary landfill facility shall be ineligible for compensation if the claimant knew or reasonably should have known of the potential that damages, including, but not limited to, property value diminution, could result by virtue of purchasing property near the particular sanitary landfill facility in question.

(e) The claimant shall exercise reasonable diligence and ordinary care and take affirmative measures to mitigate or prevent the damages incurred by the claimant from occurring in the first instance or from increasing or being aggravated. Additional damages that are the result of claimant's failure to mitigate damages shall not be eligible for compensation from the Fund.

(f) Any costs incurred by the claimant prior to filing of a claim or during the pendency of a claim shall not prejudice the rights of the Department to evaluate the reasonableness of said costs prior to the granting of an award.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• Rewrote (b); in (d), inserted ", including, but not limited to, property value diminution," following "damages"; and in (e), added a second sentence.

N.J. Admin. Code § 7:1I-2.4 Overlapping claims

(a) A claim shall be ineligible for compensation from the Fund to the extent that the Fund has already paid or settled another claim for the same damages.

(b) If two or more claims include an assertion of the same damages, the Department shall apportion payment for such damages among the claimants or exclude certain of the claims from payment. The Department shall base the apportionment or exclusion upon the Department's determination of which claimants have actually incurred the damages in question.

N.J. Admin. Code § 7:1I-2.5 Waiver of damages not set forth in claim

The claimant shall be deemed to have waived any damages which are not set forth in the claim or in any response to the Department's request for information under N.J.A.C. 7:1I-3.3, or in any amendment to such claim or response under N.J.A.C. 7:1I-3.4.

N.J. Admin. Code § 7:1I-2.6 Claims by responsible parties or by owners or operators of a sanitary landfill facility

(a) No responsible party for a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are a responsible party.

(b) No owner or operator for a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are an owner or operator.

(c) No person who at any time deposited, disposed or otherwise discarded solid waste on or into any land at a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility at which they, at any time, deposited, disposed or otherwise discarded solid waste. This express prohibition shall particularly apply to any person who at any time hauled or carted solid waste to the sanitary landfill facility in question.

(d) No person who benefits from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for a remediation that involves the use of engineering controls at a sanitary landfill facility, or who acquired the sanitary landfill facility after the issuance of a final remediation document for a remediation at the sanitary landfill facility that involves the use of engineering controls and seeks payment for damages relating to the real property and remediation covered by the covenant not to sue, shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are an owner, operator, or otherwise responsible party.

(e) No person who benefits from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for a remediation that involves only the use of institutional controls at a sanitary landfill facility, or who acquired the sanitary landfill facility after the issuance of a final remediation document for a remediation at the sanitary landfill facility that involves only the use of institutional controls shall receive compensation from the Fund for damages proximately resulting from removing the institutional control at the very sanitary landfill facility for which they are an owner, operator or otherwise responsible party.

(f) Notwithstanding (b), (d) and (e) above, an owner or operator may be eligible for damages if such owner or operator can establish to the satisfaction of the Department that the claim satisfies one of the following requirements:

1. Despite exercising reasonable diligence and intelligence before purchasing or otherwise acquiring or obtaining title to the land, the claimant did not discover until after purchasing or otherwise acquiring or obtaining title to the land, that a sanitary landfill facility is located, has been located, had been located or at any time was located on the subject property, and before purchasing or otherwise acquiring or obtaining title to the land, the claimant conducted a diligent and thorough inquiry into previous ownership and uses of the property. In order for a person to satisfy the requirement to engage in a diligent and thorough inquiry into previous ownership and uses of the property, a person must perform a preliminary assessment and site investigation in accordance with N.J.S.A. 58:10-23.11g(d)(2)(d) and N.J.A.C. N.J.A.C. 7:26E-3;

2. The claimant is a government entity and acquired the property by escheat or other involuntary transfer or by operation of law, and not by an affirmative act such as exercise of the power of eminent domain. If the government entity acquired or obtained title to the property by an affirmative or voluntary act, the standard set forth in (d)1 above shall govern eligibility of the government entity's claim;

3. The claimant is the current owner of the sanitary landfill facility who acquired the sanitary landfill facility after the facility ceased operating, but prior to the effective date of the Act, January 1, 1982, and took no part in the operation of the sanitary landfill facility; or

4. The claimant acquired the sanitary landfill facility after the issuance of a final remediation document concerning the sanitary landfill facility or a portion of the sanitary landfill facility and all of the following apply:

i. The remediation which is the subject of the final remediation document involves the use of an institutional control only;

ii. The claimant is a person who is relieved from liability pursuant to N.J.S.A. 58:10-23.11g(d) or (f) for the contamination at the sanitary landfill facility; and

iii. The claim is for the payment of damages in response to a Department order that the claimant conduct additional remediation at the sanitary landfill facility, except if the order is for any additional remediation that is required to remove an institutional control.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• Inserted new (d) and (e); and recodified former (d) as (f), made internal citation changes, and added 3 and 4 and made a corresponding language change.
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• In (d) and (e), deleted "issued by the Department" following "sue", inserted "or N.J.S.A. 58:10C-31" and substituted "issuance of a final remediation document" for "Department issued a no further action letter"; in the introductory paragraph of (f)4, substituted "issuance of a final remediation document" for "Department issued a No Further Action letter"; and in (f)4i, substituted "final remediation document" for "No Further Action letter".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

N.J. Admin. Code § 7:1I-2.7 Administrative closure of claims

(a) The Department may, in its discretion, administratively close any claim for which the claimant has:

1. Failed to take actions required by this chapter within 60 days after the claimant was required to take such action; or

2. Failed to respond to a request for information by the Department within the time period set forth in the request.

(b) Administrative closure of a claim is without prejudice. The claimant may reactivate the claim by rectifying the failure under (a)1 or 2 above and making a written request to the Department for reactivation.

(c) Before closing a claim under (a) above, the Department shall send the claimant written notice of the Department's intent to administratively close the claim. The Department shall state in the written notice the reason for the administrative closure, and the procedure to avoid administrative closure under (d) below.

(d) The Department shall administratively close the claim unless:

1. Within six months after the claimant's receipt of the notice described in (c) above, the claimant has submitted to the Department an affidavit explaining why the claim should not be administratively closed (which affidavit may include an explanation of why the time allotted to take such action or provide information was insufficient); and

2. The Department determines that the affidavit provides an adequate explanation of why the claim should not be administratively closed.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• In (d), substituted a reference to six months for a reference to 30 days in 1.

N.J. Admin. Code § 7:1I-2.8 Relaxation of procedural requirements

(a) Except as provided by (b) below, the Department may relax any of the procedural requirements of this chapter if the Department determines that strict adherence to such requirements would result in unfairness or injustice.

(b) Notwithstanding (a) above, the Department shall not relax procedural requirements of this chapter if such requirements are imposed by the Act, by other applicable State or Federal statutes, or by applicable decision, order or decree of a court of competent jurisdiction.

N.J. Admin. Code § 7:1I-2.9 Imminent hazard

Priority review of claims may occur in cases where the claimant has demonstrated to the Department's satisfaction that extreme hardship or extreme existing or imminent hazard will proximately result from the improper operation or improper closure of the sanitary landfill facility.

Subchapter 3 CLAIMS PROCEDURE

N.J. Admin. Code § 7:1I-3.1 Time for filing of claims

Claimants shall submit any claims to the Department not later than one year after the date of discovery of damages. With regard to claims filed by government entities, for damages resulting from contamination to private potable wells other than the claimant's own well(s), the date of discovery of damages is when the government entity agrees by vote, ordinance, resolution or other binding commitment, whichever occurs first, to restore, repair or replace the contaminated potable wells in question. With regard to property value diminution claims, damages, if any, are incurred when the property is sold. Claims for property value diminution, therefore, must be filed within one year of sale of the property. If a claimant fails to submit any claim to the Department within such one-year period, the claimant shall be deemed to have waived such claim. Such waiver is with prejudice and shall bar all recourse by the claimant against the Fund for any damages arising out of or related to the improper operation or improper closure of the sanitary landfill facility.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• Inserted a new second sentence.

N.J. Admin. Code § 7:1I-3.2 Submission of claim

(a) For the purposes of determining whether a claim has been timely filed pursuant to N.J.A.C. 7:1I-3.1, the following shall apply:

1. If the claimant submits the claim by United States mail, the claim will be deemed filed as of the date of mailing by the claimant. Claims submitted by mail must be sent in accordance with N.J.A.C. 7:1I-1.8; or

2. If the claimant submits the claim via another means of delivery, the claim will be deemed filed as of the date of receipt by the Department.

N.J. Admin. Code § 7:1I-3.3 Contents of claim

(a) Claims shall be typewritten or written legibly in ink, and shall contain the following information:

1. The name of the claimant;

2. The street address of the claimant;

3. The mailing address of the claimant;

4. The telephone number of the claimant during normal daytime business hours;

5. The name, mailing address, telephone number, and relationship to the claimant of any person designated to receive communications from the Department pursuant to N.J.A.C. 7:1I-3.6;

6. Whether the claimant is an individual, general partnership, limited partnership, corporation, local government entity, Federal government entity, or state government entity;

7. A statement that the claimant has actually incurred damages, as such term is defined in N.J.A.C. 7:1I-1.5, that the claimant has not received compensation from any other source for such damages, and that the claimant is not an owner or operator or responsible party in relation to the claim. Such statement need not be specific about the amount or nature of such damages;

8. If the claim is for property value diminution, a statement that the claimant is attempting to sell the subject property. The Department shall deny, without prejudice, a claim for property value diminution which is filed after the effective date of these rules which does not contain this statement. The claimant may again file the claim upon commencing efforts to sell the subject property;

9. In accordance with N.J.A.C. 7:1I-2.3(f), a statement that the claimant did not know of the existence of the sanitary landfill facility and did not know, nor reasonably could have known, of the potential that property value diminution could result by virtue of purchasing property near the particular sanitary landfill facility in question;

10. If the claim is for property value diminution and is made pursuant to N.J.A.C. 7:1I-4.8, all documents required by N.J.A.C. 7:1I-4.8 are to be submitted with the claim, including a statement that the claimant has contracted to sell or has sold the subject property and that the claimant will allow the Department or its agents access to the property if claimant still maintains title to the property. If the property has not been sold, claimant must submit within 30 days of the signing of a binding agreement of sale a copy of the contract of sale to allow adequate time for the Department to schedule an appraisal;

11. A statement that the claimant cannot benefit from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for the sanitary landfill facility at issue and why;

12. A statement that the damages being claimed are not the proximate result of additional remediation to remove an institutional control at the sanitary landfill facility;

13. In accordance with N.J.A.C. 7:1I-2.6(f)3, a statement that the claimant is the current owner of the sanitary landfill facility who acquired the sanitary landfill facility after the facility ceased operating, but prior to January 1, 1982, and the claimant took no part in the sanitary landfill facility's operation; and

14. A statement that the claimant is the owner of a sanitary landfill facility for which a final remediation document was issued for the entire sanitary landfill facility or any part thereof, and that all of the following apply:

i. The remediation which is the subject of the final remediation document involved the use of an institutional control and not an engineering control;

ii. The claimant is a person who qualifies to be relieved from liability pursuant to N.J.S.A. 58:10-23.11g(d) or (f) for the contamination at the sanitary landfill facility and why; and

iii. The Department has ordered the claimant to remediate the contamination.

(b) The claimant shall submit to the Department the following types of information requested by the Department:

1. The location of the sanitary landfill facility which the claimant believes to be the proximate cause of the damages incurred, including the name of the site, the street address, the municipality, and the county, including without limitation the following:

i. Whether any person, or owner or operator of the sanitary landfill facility has admitted responsibility for the damages claimed or for the condition from which the claim arose, or liability for the amount of damages for which the claim is being made;

ii. If any such person has admitted responsibility or liability pursuant to (b)1i above, the names of such persons and the nature of such statements or admissions;

iii. Whether a final remediation document was issued concerning the sanitary landfill facility or a portion thereof, and whether the remediation at the sanitary landfill facility involved an institutional control and/or engineering control;

iv. Whether the covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 applies to the sanitary landfill facility or a portion of the sanitary landfill facility;

v. Whether the claimant filed a claim against the sanitary landfill facility's Environmental Impairment Liability Fund established pursuant to N.J.S.A. 13:1E-109;

vi. Whether the claimant filed a claim for reimbursement against the Municipal Landfill Closure and Remediation Fund established pursuant to N.J.S.A. 13:1E-116.1; and

vii. Whether the claimant has applied for financial assistance or a grant from the Hazardous Discharge Site Remediation Fund established pursuant to N.J.S.A. 58:10B-4 or the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund, N.J.S.A. 58:10A-37.3.

2. A description of any damage to real property located thereon, including without limitation the following:

i. The date on which the damage occurred;

ii. The precise location of the damaged real property, including the street address, the tax lot and block, the municipality, and the county;

iii. A description of the predominant use of the damaged real property;

iv. A detailed description of the damage to the real property, including whether the damages include costs associated with installing, maintaining, monitoring or removing engineering or institutional controls;

v. An estimate for the cost to remedy the damage, and the name, address and qualifications of the person making the estimate; and

vi. A description of the claimant's interest in the damaged real property, and documents evidencing such interest. Documents evidencing fee title to the damaged real property shall include an affidavit of title executed by the claimant, together with either a copy of the recorded deed conveying title to the claimant, or an owner's title insurance policy insuring the claimant's interest in the property. Documents evidencing a leasehold interest in the property shall include a copy of the lease for the property, together with an affidavit of the claimant stating that the lease is in full force and effect;

3. A description of any damage to personal property located thereon, including without limitation:

i. The date or dates on which the damage occurred;

ii. The location of the personal property at the time the damaged occurred;

iii. A description of the personal property which was damaged;

iv. A description of the damage;

v. The original cost paid by the claimant for the damaged personal property;

vi. The date the claimant acquired the damaged personal property;

vii. Evidence of the claimant's ownership of the damaged personal property;

viii. An estimate of the cost of repairing the damage to the personal property, and an estimate of the value of the damaged personal property as of the time of the damage;

ix. The name, address and qualifications of any persons who prepared the estimates required by (b)2viii above; and

x. The location at which the Department's designee can inspect the damaged personal property;

4. A detailed description of the facts known to the claimant which support the claim, such as the facts which lead the claimant to believe that the improper operation or improper closure of the sanitary landfill facility cause the damages suffered by the claimant;

5. The names and addresses of any witnesses known to the claimant who may have knowledge concerning the improper operation or improper closure, threatened damage, or damage caused by the sanitary landfill facility;

6. The names of any public agencies (including without limitation any local or state police or any other local, county, state, interstate or Federal agencies) who have investigated the improper operation or improper closure activities and, if known to the claimant, the names of the persons who conducted the investigations on behalf of such agencies;

7. If any of the damaged real or personal property or any of the asserted lost income may be covered by any insurance policy or policies, or other financial agreement or instrument under which compensation is reasonably likely to be available, claimant shall exercise best efforts to obtain compensation from such sources for the damages sustained in accordance with N.J.A.C. 7:1I-2.3(b), and shall provide as proof of such action the following information:

i. The name and address of the insurance carrier which issued the policy, or issuer of the other financial agreement or instrument;

ii. The policy number or other applicable reference number;

iii. A copy of the certificate of insurance or other financial agreement or instrument; and

iv. Copies of any correspondence between the insurance carrier or issuer of the other financial agreement or instrument and the claimant or claimant's representatives concerning the damages claimed;

8. The names and addresses of any persons other than the Fund (including without limitation insurance companies) against whom the claimant has asserted a claim;

9. Whether the claimant has received or agreed to receive any compensation from any person in connection with the damages claimed, and the details of any such compensation or agreement to receive compensation;

10. A description of any action taken to repair, restore or replace damaged real or personal property, including without limitation the following:

i. The name and address of the person who has taken such action; and

ii. The cost of such action;

If the claimant asserts any personal injury damages including medical expenses incurred and income lost as a result thereof, the claim shall include the following information:

i. The total amount of the claimed loss of income;

ii. The period of time during which the claimant asserts that the loss of income has occurred;

iii. If the claimant asserts that the loss of income has occurred over a period exceeding 12 months, a breakdown of the loss of income by three-month periods, with the first such period commencing on the date of discovery;

iv. A detailed description of the method employed by the claimant in calculating the claimed loss of income;

v. A statement of whether all income, sales and other accounting and financial information supporting the claim is available for inspection, copying and audit by the Department;

vi. If any of the information described in (b)11v above is not available for inspection, copying and audit, an explanation of why such information is unavailable for such purposes;

vii. With respect to any of the information described in (b)11v above, which is available for inspection, copying and audit, a description of where and when the Department can obtain access to such information;

viii. If any of the information described in (b)11i through vii above has been audited, certified or reviewed by a certified public accountant, the name, address, and telephone number of such accountant, and the date of such audit, certification or review. If such information has been audited, the claimant shall attach copies of all audited statements and the auditor's reports;

ix. A specific statement as to the nature of the health injuries and how the health injuries are related to the improper operation or improper closure of the sanitary landfill facility in question; and

x. Detailed records substantiating the personal injuries; effects or damages suffered by the claimant including any medical records, prognosis statements, and documentation indicating the monetary value of medical attention;

12. If the claimant is a limited partnership, the names and addresses of all general partners;

13. If the claimant is a general partnership, the names and addresses of all partners;

14. If the claimant is a corporation, the names and addresses of all directors and of all officers;

15. Any other information which the claimant believes to be relevant to the claim; and

16. Any other information which the Department deems necessary to process the claim.

(c) Any documents supporting the claimant's assertion of costs incurred in ameliorating the damage resulting from the improper operation or improper closure of a sanitary landfill facility shall be presented as follows:

1. The claimant shall submit a compilation of all such costs, stating the aggregate amount of the costs incurred; and

2. The claimant shall submit a breakdown of the aggregate costs incurred, stating which portion of the aggregate cost is attributable to ameliorating damage resulting from the improper operation or improper closure of the sanitary landfill facility, and which portion is not.

(d) The claimant shall submit all bills, invoices, receipts and other documentation in an orderly fashion, accompanied by an index and/or a summary if the Department determines that an index or summary would assist in the organized and expeditious processing of the claim.

(e) The Department may administratively close the claim pursuant to N.J.A.C. 7:1I-2.7 for failure to provide information under this section.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (a), made an internal citation change in 9, substituted a reference to 30 days for a reference to 10 days in the last sentence of 10, and added 11 through 14; in (b)1, inserted new iii and iv, recodified former iii as v, and added vi and vii; and in (b)2, rewrote iv.
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• In (a)11, substituted "pursuant to N.J.S.A. 58:10B-13.1 or N.J.S.A. 58:10C-31" for "if one has been issued by the Department"; in the introductory paragraph of (a)14, substituted "a final remediation document was issued" for "the Department issued a no further action letter"; in (a)14i, substituted "final remediation document" for "No Further Action letter"; in (b)1iii, substituted "a final remediation document was issued" for "the Department ever issued a no further action letter"; and in (b)1iv, deleted "Department issued a" preceding "covenant" and substituted "N.J.S.A. 58:10C-31 applies to" for "concerning".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

N.J. Admin. Code § 7:1I-3.4 Amendment of claim

(a) A claimant may amend a claim, or a response to the Department's request for information, with respect to the nature or extent of the damages, the cause of the damages, the amount of the claim, or any other information relevant to the claim, until the occurrence of the earliest of the following:

1. The approval of the claim by the Department;

2. The denial of the claim by the Department; or

3. The agreement to a settlement among a claimant and one or more owners or operators or other persons in connection with the sanitary landfill facility which is the subject of the claim.

N.J. Admin. Code § 7:1I-3.5 Consent to inspection; investigation

(a) Submission of a claim shall constitute consent by the claimant to allow the Department, and other persons designated by the Department:

1. To inspect all documents and property relating to his or her claim for damages including, but not limited to:

i. Financial, medical, employment and property records;

ii. Insurance policies; and

iii. Damaged real and personal property;

2. For all information submitted pursuant to N.J.A.C. 7:1I-3.3, to copy and audit the information; and

3. To enter onto any property to which the claimant has the right to grant access, or to which the claimant has the right to compel another person to grant access. Any cost which the claimant incurs in compelling such access shall be borne solely by the claimant and shall not constitute a compensable damage payable by the Fund.

(b) In investigating claims for personal injuries, the Department may direct a medical examination of the claimant by an independent physician selected by the Department. The claimant shall present himself or herself to the physician selected at the time and place designated by the physician.

1. A written report of such examination shall be filed by the examining physician with the Department and a copy mailed by the Department to the claimant; and

2. If the Department has directed a medical examination by a physician selected by the Department, such physician's fee shall be paid by the Department from the Fund.

N.J. Admin. Code § 7:1I-3.6 Communication with claimant or representative

The Department will direct all communications in connection with the claim to the person who signed the claim, unless the claimant submits to the Department a written statement, signed by the person required to sign the claim, designating a representative to receive communications from the Department.

N.J. Admin. Code § 7:1I-3.7 Notice to owner or operator

When, in the opinion of the Department, the claim is complete for payment pursuant to N.J.A.C. 7:1I-2.2 and 3.3, the Department shall notify the owner or operator of the sanitary landfill facility by mailing a notice of the claim by certified mail, return receipt requested, to such owner or operator. In the case of multiple, related claims (series claims), the Department will notify the owner or operator of the sanitary landfill facility of the first claim of the series only. This notification will include an estimate of the approximate number of claims expected in that series if known, and will give notice that copies of all further claims must be requested in writing.

Subchapter 4 PROPERTY VALUE DIMINUTION CLAIMS

N.J. Admin. Code § 7:1I-4.1 Extent of eligibility

Claims for diminution of property value shall be eligible for compensation from the Fund only to the extent that the subject property has been sold and such diminution proximately results from the improper operation or improper closure of a sanitary landfill facility. A diminution of property value may be deemed attributable to the improper operation or improper closure of a sanitary landfill facility notwithstanding the lack of any physical intrusion resulting from the sanitary landfill facility onto the subject property.

N.J. Admin. Code § 7:1I-4.2 Requirements for eligibility

(a) Except for claims settled under N.J.A.C. 7:1I-4.6 or 4.7, claims for diminution of property value are not eligible for compensation by the Fund unless the claimant has sold the subject property and the Department determines that the claimant's sale of the subject property was in good faith, based upon the appraisals made pursuant to N.J.A.C. 7:1I-4.3 and the information submitted pursuant to N.J.A.C. 7:1I-4.5.

(b) Within 30 days after filing the claim, the claimant shall list the subject property for sale with one or more licensed real estate brokers who are members of a multiple listing service (or its commercial equivalent, for nonresidential property). The claimant shall so list the subject property for sale continuously, until entering into an agreement for the sale of the subject property; provided however, that discontinuances made necessary by the claimant's good faith choice to list the subject property with another broker shall not be deemed to violate this requirement. One discontinuity of less than 14 days shall be presumed to be in good faith.

(c) Claimants may file a property value diminution claim with the Department prior to the sale of property provided that the claimant states that the property will be placed on the market for sale within 30 days after filing the claim.

(d) All claimants shall provide the Department with an executed copy of a contract for sale of the subject property within 30 days after signature, and shall provide the Department or its agents with access to the property to conduct an appraisal and inspection.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• Added (c) and (d).

N.J. Admin. Code § 7:1I-4.3 Appraisal of subject property

(a) After the claimant has elected under N.J.A.C. 7:1I-4.9(a)1 to pursue the claim, or in the case of a new claim filed after February 22, 1994, the Department shall obtain appraisals of the value of the subject property. The claimant shall notify the Department of the sale, in writing, within 10 days of signing a binding agreement of sale in order to allow the Department sufficient time to have an appraisal completed before settlement. The appraisals shall be as of the time of the sale of the subject property (or, for claims under N.J.A.C. 7:1I-4.6 or 4.7, as of the date the Department issues an NOI to pay). One such appraisal shall state the value of the subject property as affected by the sanitary landfill facility (unless the Department elects not to obtain such appraisal, pursuant to N.J.A.C. 7:1I-4.3(b) ), and one appraisal shall state the value of the subject property absent the effect of the sanitary landfill facility. The appraisals may, in the Department's discretion, be based upon one or more of the following factors:

1. Sales of comparable properties in the immediate area;

2. Income generated by the subject property;

3. Replacement cost of the subject property; and/or

4. Such other factors as are ordinarily considered by real estate appraisers who are members of the Appraisal Institute or who are licensed or certified to perform real estate appraisals in New Jersey.

(b) The Department may elect not to obtain an appraisal of the subject property as affected by the sanitary landfill facility if the Department determines in its discretion that there is insufficient information to obtain a meaningful appraisal of the subject property reflecting the effect of the sanitary landfill facility. Without limiting the discretion of the Department under this subsection, the Department may determine that there is insufficient information if fewer than three comparable properties which have been affected by the sanitary landfill facility have been sold as of the date on which the claim is filed.

N.J. Admin. Code § 7:1I-4.4 Valuation of a claim

(a) If the Department has obtained appraisals pursuant to N.J.A.C. 7:1I-4.3(a), the amount of the claim eligible for compensation from the Fund shall be computed by the difference between (a)1 and (a)2 below, adjusted in accordance with (c) below:

1. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1I-4.3(a), excluding the effect of the sanitary landfill facility on such value; and

2. The greater of:

i. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1I-4.3(a), reflecting the effect of the sanitary landfill facility on such value; or

ii. The price actually obtained by the claimant upon the sale of the subject property, without closing adjustments.

(b) If, pursuant to N.J.A.C. 7:1I-4.3(b), the Department has elected not to obtain an appraisal of the subject property as affected by the sanitary landfill facility, the amount of the claim eligible for compensation from the Fund shall be equal to the difference between (b)1 and (b)2 below, adjusted in accordance with (c) below:

1. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1I-4.3(a), excluding the effect of the sanitary landfill facility on such value; and

2. The price actually obtained by the claimant upon the sale of the subject property, without closing adjustments.

(c) The Department may, in its discretion, adjust the amount determined pursuant to (a) or (b) above by considering other information available to the Department which supports a conclusion that the amount determined pursuant to (a) or (b) above does not accurately reflect the diminution in the value of the subject property resulting from the improper operation or improper closure of the sanitary landfill facility. Such information may include, but is not limited to, any of the following:

1. Information concerning sales of comparable properties considered in establishing an appraisal pursuant to N.J.A.C. 7:1I-4.3(a), indicating that factors other than the sanitary landfill facility affected the sale prices of such properties. Such information may include, without limitation, the prices of comparable properties within and outside the area in which the sanitary landfill facility may have affected real property values; general market conditions; the time elapsed between listing for sale and execution of an agreement of sale for comparable properties within and outside the area in which the sanitary landfill facility may have affected real property values; and specific terms of the agreements of sale (such as financing terms, personal property included in the sale, and apportionments of closing costs);

2. Information concerning sales of comparable properties considered in establishing an appraisal pursuant to N.J.A.C. 7:1I-4.3(a), indicating that such properties have characteristics which distinguish them from the subject property, and which affect the values of such properties;

3. Information concerning the sale of the subject property, indicating that the difference between the sale price and the appraised value of the property reflected factors other than the sanitary landfill facility. Such information may include, but is not limited to, the time elapsed between listing of the subject property for sale and execution of an agreement of sale; the length of time the subject property was offered for sale, the nature and number of any offers to purchase the subject property; the difference between the initial listing price and the sale price; the number and extent of intermediate reductions in the listing price; specific terms of the agreement of sale for the subject property (such as financing terms, personal property included in the sale and apportionments of closing costs); data concerning the real estate market generally at the time of the sale of the subject property; and other evidence of the good faith nature of the sale required to be submitted under N.J.A.C. 7:1I-4.5; and

4. The effect of the completion of the construction phase of the sanitary landfill facility remediation or of other amelioration of the damages resulting from the improper operation or improper closure of the sanitary landfill facility.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (a), substituted "computed by" for "equal to" following "shall be" in the introductory paragraph.

N.J. Admin. Code § 7:1I-4.5 Evidence of good faith sale

(a) Except as provided in N.J.A.C. 7:1I-4.7 and 4.8, within 60 days after the signing of a binding agreement of sale and the closing of the sale for the subject property, the claimant shall submit the following documents to the Department:

1. Copies of all listing agreements for the sale of the subject property;

2. Copies of all written offers to purchase the subject property;

3. A copy of the contract of sale of the subject property;

4. Copies of all settlement statements, including, without limitation the Settlement sheet(s) required by the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.A.§ 2601 et seq. and the HUD-1 Uniform Settlement Statement form if required by 24 CFR 3500.8;

5. A copy of the deed conveying the subject property together with a copy of the transmittal letter forwarding the deed to the county clerk or register of deeds and mortgages for recording;

6. An affidavit by the claimant, signed by the person required to sign the claim and certified in accordance with N.J.A.C. 7:1I-1.7, stating the following:

i. The sale price of the subject property without closing adjustments;

ii. That neither the claimant nor any person not listed on the settlement statements has received any money or other compensation from any person in connection with the subject property, except as set forth on the settlement statements; and

iii. That the documents submitted pursuant to (a)1 through 5 above are delivered in connection with the sale of the subject property; and

7. An affidavit by the claimant's realtor, stating the following:

i. That the realtor is a member of a multiple listing service, and listed the property for sale with a multiple listing service (or its commercial equivalent, for claims involving commercial property or other properties not normally offered for sale through a multiple listing service);

ii. The period of time the subject property was offered for sale, and the period of time the property was listed for sale with the multiple listing service;

iii. The initial listing price;

iv. All changes in the listing price, and the dates of such changes;

v. A record of all inquiries received from potential purchasers regarding the subject property, and of all showings or open houses held in the course of offering the subject property for sale, including the names and addresses of all persons who inquired about the subject property, were shown the subject property, or attended open houses at the subject property, and a description of the responses of these persons to the subject property; and

vi. A record of the amount and date of each offer made for the purchase of the subject property.

(b) A determination by the Department that the claimant arrived at the sale price in good faith shall not preclude the Department from determining that any other aspect of the sale of the subject property was not in good faith.

(c) The Department may deny the claim or adjust the amount eligible for compensation, if based upon the evidence required under (a) above, the Department determines that any aspect of the sale of the subject property was not in good faith.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• In (a), substituted a reference to 60 days for a reference to 10 days in the introductory paragraph.

N.J. Admin. Code § 7:1I-4.6 Settlement based upon legal inability to sell the subject property

(a) If, solely as a result of the improper operation or improper closure of a sanitary landfill facility, the claimant is legally unable to sell the subject property (for example, if a certificate of occupancy cannot be issued for the subject property as a result of the sanitary landfill facility, and the subject property is located in a municipality in which a certificate of occupancy is required for the sale), the Department may, in its discretion, offer to settle the claimant's claim against the Fund in accordance with this section.

(b) If the Department elects to settle a claim pursuant to this section, the Department shall determine the amount of the claim eligible for compensation pursuant to N.J.A.C. 7:1I-4.4. An offer by the Department to settle the claim shall be in such amount.

(c) The making, acceptance or rejection of such settlement offer pursuant to (b) above shall be in accordance with N.J.A.C. 7:1I-5.4.

(d) As a condition of the settlement of the claim pursuant to this section, the claimant shall cause all persons having an ownership interest in the subject property (including without limitation any dower or courtesy interest preserved pursuant to N.J.S.A. 3B:28-1) to execute, acknowledge and deliver to the Department a document, in recordable form, granting to the Fund a lien on the subject property securing repayment of the full amount of the settlement. The Department shall forward such document to the county clerk or register of deeds and mortgages of the county in which the subject property is located. Such document shall be prepared and recorded at the claimant's expense. This lien shall serve as a basis for reimbursement to the Fund of any excess payments made in settlement.

(e) The Department shall execute, acknowledge and deliver to the claimant a discharge of the lien upon payment of the following amount (provided, however, that if the payment amount calculated below is less than zero, the Department shall execute, acknowledge and deliver the discharge of the lien upon the claimant's written request, without the payment of any money; and provided further, that if the payment amount calculated below exceeds the amount of the settlement, the Department shall execute, acknowledge and deliver the discharge of the lien upon repayment of the settlement amount by the claimant, plus interest at the rate for post-judgment interest established in the Rules Governing the Courts of the State of New Jersey, as such rate is in effect as of the date of the settlement):

Payment amount = SP - (AV - S)

where:

1. SP equals the sale price of the subject property, as adjusted pursuant to the criteria listed in N.J.A.C. 7:1I-4.4 (c), if the Department determines that the actual sale price does not accurately reflect the diminution in the value of the subject property proximately resulting from the improper operation or improper closure of the sanitary landfill facility;

2. AV equals the appraised value of the subject property, absent the effects of the improper operation or improper closure of the sanitary landfill facility, as adjusted under N.J.A.C. 7:1I-4.4(c); and

3. S equals the amount of the settlement made pursuant to this section.

N.J. Admin. Code § 7:1I-4.7 Settlement when emergency relocation is necessary

If the Department determines, in its discretion, that environmental conditions at the subject property which result from the improper operation or improper closure of a sanitary landfill facility create a substantial risk of an imminent health or safety hazard to the occupants of the subject property, the Department may suspend any or all of the requirements of N.J.A.C. 7:1I-4.2, 4.3, 4.4 and 4.5 and may immediately award compensation to enable the occupants of the property to relocate temporarily or permanently.

N.J. Admin. Code § 7:1I-4.8 Contract for sale of property entered into before filing of claim

(a) If a claimant has entered into a contract for the sale of property before filing a property value diminution claim with respect to such property, the Department may, in its discretion, settle such a claim in accordance with this section.

(b) Claims made pursuant to this section shall be eligible for compensation only to the extent provided in N.J.A.C. 7:1I-4.1, and only if the subject property satisfies the eligibility requirements set forth in N.J.A.C. 7:1I-4.2.

(c) Subject to the limitation in N.J.A.C. 7:1I-4.1, the Department shall determine the amount of the settlement offer pursuant to N.J.A.C. 7:1I-4.4.

(d) Together with the claim (or, if the claim is made before closing of the sale of the subject property, within 10 days after closing), the claimant shall submit to the Department all documents required pursuant to N.J.A.C. 7:1I-4.5; provided, however, that the Department may in its discretion, refrain from requiring submission of the documents normally required under N.J.A.C. 7:1I-4.5(a)1 and (a)7.

N.J. Admin. Code § 7:1I-4.9 Reserved

History

• Repealed by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• Section was "Suspension of claims".

Subchapter 5 SETTLEMENT AND DETERMINATION OF CLAIM

N.J. Admin. Code § 7:1I-5.1 Settlement of claim with owner, operator or other person

(a) At least two weeks prior to any private settlement with any owner or operator or other person, the claimant shall notify the Department by certified mail of the terms of the settlement.

(b) If the claimant privately settles with any owner or operator or other person in connection with the sanitary landfill facility in question, any payment the claimant receives as a result of that settlement shall be deducted from the amount of compensation awarded by the Department regarding the claimant's damages; provided, however, that if the settlement terms release any owner or operator from further liability, the settlement shall be an absolute bar to any claim for damages from the Fund.

N.J. Admin. Code § 7:1I-5.2 Actual real or personal property damage

If the claimant submits all evidence required by N.J.A.C. 7:1I-3.3, and if, after verification of the reasonableness of all estimates and receipts submitted, the Department is satisfied with the evidence submitted, the Department shall issue a Notice of Intent pursuant to N.J.A.C. 7:1I-5.4.

N.J. Admin. Code § 7:1I-5.3 Personal injuries

If the claimant submits all evidence required by N.J.A.C. 7:1I-3.3, and if, after verification of the reasonableness of receipts and opinions supplied, the Department is satisfied with the evidence submitted, the Department shall issue a Notice of Intent pursuant to N.J.A.C. 7:1I-5.4.

N.J. Admin. Code § 7:1I-5.4 Notices of Intent

(a) The Department shall issue a Notice of Intent (NOI) to deny with respect to any claim which, on its face, does not contain information sufficient to support a determination that the claim is eligible for compensation from the Fund. The Department shall issue a Notice of Intent (NOI) to pay with respect to any claim which contains sufficient information to support a determination that the claim is eligible for compensation from the Fund. The Department shall send the claimant the NOI by certified mail, return receipt requested.

(b) The claimant shall either accept the NOI or may contest the NOI by submitting to the Department additional evidence in support of the claim, and evidence that any material fact set forth in the NOI is incorrect. Legal arguments will not be accepted. The claimant shall submit such evidence within 30 days after the date on which the claimant received the NOI; provided however, that if the claimant has refused delivery of the NOI, the claimant shall submit such evidence 30 days after the date the Department mailed the NOI.

(c) In the case of an NOI to deny, if after reviewing the evidence submitted pursuant to (b) above, the Department determines that the claim does not clearly fail to satisfy the requirements for eligibility for compensation from the Fund, then the Department shall withdraw the NOI and reconsider the claim. However, if after reviewing the evidence submitted pursuant to (b) above, the Department determines that the claim does clearly fail to satisfy the requirements for eligibility for compensation from the Fund, then the Department will process the claim in accordance with N.J.A.C. 7:1I-5.5. The claimant may contest the Department's final decision by proceeding in accordance with N.J.A.C. 7:1I-5.6.

(d) In the case of a NOI to pay, if after reviewing the evidence submitted pursuant to (b) above, the Department determines that the claimant has clearly demonstrated its entitlement to a payment greater than the amount contained in the NOI to pay, then the Department shall make a new offer of payment with regard to the claim. However, if after receiving the evidence submitted under (b) above, the Department determines that the claimant has not clearly demonstrated its entitlement to a payment greater than the amount contained in the NOI to pay, then the Department shall issue a final decision on the claim. If the claimant wishes to contest the Department's final decision, the claimant shall proceed in accordance with N.J.A.C. 7:1I-5.6.

N.J. Admin. Code § 7:1I-5.5 Denials

(a) The Department shall deny the claim after the expiration of the 30-day period allotted under N.J.A.C. 7:1I-5.4(b), if the claimant fails to submit any evidence to the Department within the 30-day period.

(b) The Department shall deny any claim if, after reviewing the evidence submitted pursuant to N.J.A.C. 7:1I-5.4(b), the Department determines that the claim clearly fails to satisfy the requirements for eligibility for compensation from the Fund.

(c) If the Department denies the claim pursuant to this section, the Department shall prepare a written statement setting forth the denial and the reasons therefor. The Department shall send the claimant a copy of the final decision by certified mail, return receipt requested.

N.J. Admin. Code § 7:1I-5.6 Adjudicatory hearings

(a) A claimant may contest a final claim decision by requesting a hearing before the Office of Administrative Law. The claimant shall make the request in writing within 30 days after receiving the Department's written statement under N.J.A.C. 7:1I-5.5(c); provided, however, that if the claimant has refused delivery of the Department's final decision, the claimant shall make the request for a hearing within 30 days after the date of mailing of the final decision. Failure to request a hearing before the expiration of such 30-day period shall operate as a waiver of any right to have the claim submitted to a hearing.

(b) A request for a hearing under (a) above shall contain the following information:

1. A denial of each fact disputed by the claimant which the Department has asserted in the final claim decision. The claimant's denial shall fairly meet the substance of the disputed facts, and shall contain assertions of the facts as the claimant believes them to be;

2. If the claimant asserts that, based upon the facts asserted in the Department's final claim decision, the Department's decision is improper as a matter of law, a specific explanation of the legal basis for that assertion;

3. Copies of written documents which the claimant is relying upon to support the request, provided, however, that if the claimant has previously submitted such documents to the Department, a specific reference to such documents will be sufficient;

4. An estimate of the time required for the hearing; and

5. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(c) If the claimant does not submit the information required under (b) above within the time allotted under (a) above, the Department, after proper notice to the claimant, may deny the request.

(d) The Department may require that the claimant submit additional information beyond that required under (b) above, if the Department determines that such information is necessary to provide the Department with adequate notice of the specific factual or legal bases for the claimant's objections to the final claim decision.

(e) A request for an adjudicatory hearing shall be filed with the Department at the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street, Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

All such communications regarding adjudicatory hearings for which a street address is required shall be sent to the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

(f) If the Department grants the hearing request, the Department shall file the request for a hearing with the Office of Administrative Law. The hearing shall be held before an administrative law judge in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).

Subchapter 6 CONDITIONS OF PAYMENT

N.J. Admin. Code § 7:1I-6.1 Payment of claim

(a) Except as provided in (b) below, the Department shall make claim payments in a single lump sum payment.

(b) The Department may bifurcate multiple damages filed in a single claim and make payments separately thereon.

(c) In the event that the total amount of claims awarded exceeds the current balance of the Fund, each award shall be paid, without interest, on a prorated basis over time until the awards are paid in full. Claims initially paid on a prorated basis will be satisfied in full before any payments are made on new claims.

N.J. Admin. Code § 7:1I-6.2 Conditions of payment

(a) No payment of any damages from the Fund shall be made unless the Department acquires, by subrogation, all rights of the claimant to recovery of such damages from an owner or operator of a sanitary landfill facility.

The claimant shall not prejudice such subrogation rights in any manner;

2. The claimant shall cooperate fully with the Department in the preparation of a case for trial, should the Department commence a civil action to recover any amount awarded; and

3. The claimant shall allow the Department to join his or her claim with as many claims as the Department may have against any person in any civil action commenced to recover any amounts awarded.

(b) No payment of any damages from the Fund shall be made unless the claimant executes a written release of all damages occurring prior to execution of the release except those damages which could not reasonably have been discovered prior to signing the release. The release shall satisfy all conditions precedent to payment of the claim required by this chapter.

Chapter 1J PROCESSING OF DAMAGE CLAIMS PURSUANT TO THE SPILL COMPENSATION AND CONTROL ACT

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1J-1.1 Scope

This chapter constitutes the rules of the Department concerning the processing of all claims under the Act for damages resulting from the discharge of a hazardous substance or a threatened discharge of a hazardous substance.

N.J. Admin. Code § 7:1J-1.2 Construction and applicability

(a) This chapter shall be construed liberally to permit the Department and the administrator to fulfill their statutory functions. This chapter shall be construed in conformity with, and not in derogation of, the Act.

(b) This chapter shall apply to the processing of all claims which have not been paid, settled or denied on or before the operative date of this chapter, notwithstanding the date upon which any such claim was filed with the Department.

N.J. Admin. Code § 7:1J-1.3 Severability

If any subchapter, section, subsection, provision, clause, or portion of this chapter, or the application thereof to any person, is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the subchapter, section, subsection, provision, clause, portion, or application directly involved in the controversy in which such judgment shall have been rendered and it shall not affect or impair the remainder of this chapter or the application thereof.

N.J. Admin. Code § 7:1J-1.4 Definitions

The following words and terms, when used in this chapter, shall have the following meanings:

"Act" means the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.

"Administrator" means the chief executive of the Fund.

"Affected area" means, with respect to a water supply system claim, the area within or outside the Spill Fund Claims Area for which the Department has determined, pursuant to the Safe Drinking Water regulations set forth at N.J.A.C. 7:10, that the existing source of potable water is unsuitable for human consumption due to a discharge.

"Applicable contaminant standard" means the remediation standard developed pursuant to N.J.A.C. 7:26D or N.J.S.A. 58:10B-12, for any particular hazardous substance.

"Board" means a Board of Arbitration convened by the administrator pursuant to N.J.A.C. 7:1J-9.1.

"Claim" means a claim for damages filed with the Department for recovery from the Fund. The claim includes all documents submitted under this chapter in support of the claim, including without limitation any amendments thereto under N.J.A.C. 7:1J-6.4.

"Claimant" means the person filing a claim.

"Cleanup and removal costs" means all costs associated with a discharge, incurred by the State, or its political subdivisions, or their agents, or any person with written approval from the Department, in: the removal or attempted removal of a hazardous substance; or the taking of reasonable measures to prevent or mitigate damage to the public health, safety, or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources, and shall include costs incurred by the Department for the indemnification and legal defense of contractors pursuant to the Act, subject to the appropriation by law of moneys from the General Fund to the Fund to defray these costs.

"Covenant not to sue" means a covenant pursuant to N.J.S.A. 58:10B-13.1 or 13.2.

"Damages" means all cleanup and removal costs and all direct and indirect damages actually incurred, no matter by whom sustained, arising in connection with a discharge of a hazardous substance, or in connection with a threatened discharge, which costs and damages include, but are not limited to, the following:

1. The cost of restoring, repairing or replacing any real or personal property damaged or destroyed by a discharge, any income lost from the time such property is damaged to the time such property is restored, repaired or replaced, and any reduction in value of such property caused by such discharge in comparison with its value absent the discharge;

2. The cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge;

3. Loss of income or impairment of earning capacity due to damage to real or personal property, including natural resources destroyed or damaged by a discharge, provided that such loss or impairment exceeds 10 percent of the amount which the claimant derives, based upon income or business records, exclusive of other sources of income, from activities related to the particular real or personal property or natural resources damaged or destroyed by such discharge during the week, month or year for which the claim is filed;

4. Loss of tax revenue by a state or local government for a period not to exceed one year, due to damage to real or personal property proximately resulting from a discharge (which one-year period, in the case of lost real property tax revenue, commences on the effective date of the first reduction in the assessed value of real property for damage proximately resulting from the discharge);

5. Interest on loans obtained or other obligations incurred by a claimant for the purpose of ameliorating the adverse effects of a discharge pending the payment or settlement of a claim;

6. Such sums as may be necessary to reimburse a local unit for costs incurred in an emergency response action taken to prevent, contain, mitigate, cleanup or remove a discharge or threatened discharge of a hazardous substance; and

7. Costs for legal services necessary for remediating contamination, including attorney's fees for contracting or obtaining permits, drawing of ordinances, acquisition of land and rights of way, drawing and administering construction contracts, and for legal work connected with necessary financing for the construction by a municipal utility authority of a new water system. Damages do not include costs normally associated with the listing, sale and transfer of property which is the subject of a claim.

"Department" means the New Jersey Department of Environmental Protection.

"Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of a hazardous substance into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State.

"Discovery" means the time at which the claimant discovers, or by the exercise of reasonable diligence and intelligence should have discovered, that he or she has incurred damages.

"Emergency response action" means those activities conducted by a local unit to clean up, remove, prevent, contain or mitigate a discharge that poses an immediate threat to the environment or to the public health, safety or welfare.

"Emergency response claim" means a claim by a local unit for reimbursement of costs incurred in an emergency response action.

"Engineering controls" means any physical mechanism defined as such pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

"Final remediation document" means a document defined as such pursuant to the Administrative Requirements for the Remediation of Contaminated Sites rules, N.J.A.C. 7:26C-1.3.

"Fund" means the New Jersey Spill Compensation Fund established pursuant to the Act.

"Government entity" means a governing body, department, agency, authority or any other unit of any Federal, State, county or local government or governments, including without limitation a municipal utilities authority.

"GPD" means gallons per day.

"GPM" means gallons per minute.

"Ground water" means the portion of water beneath the land surface that is within the zone of saturation (below the water table) where the pore spaces are filled with water.

"Hazardous substance" means any substance defined as such under the Discharges of Petroleum and Other Hazardous Substances regulations, N.J.A.C. 7:1E-1.7.

"Institutional controls" means a mechanism defined as such pursuant to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E.

"Local unit" means any county or municipality, or any agency or other instrumentality thereof, or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad.

"Most probable ground water flow direction" means the most probable direction of ground water flow within the Spill Fund Claims Area, as determined by the Department.

"Most probable pollutant transport rate" means the most probable rate at which each hazardous substance present in ground water in a concentration exceeding the applicable contaminant standard will be transported within the ground water flow regime, as calculated by the Department pursuant to N.J.A.C. 7:1J-3.8(c).

"Natural resources" means all land, fish, shellfish, wildlife, biota, air, waters and other such resources owned, managed, held in trust or otherwise controlled by the State.

"Notice of Intent to Deny," or "NOI," means a notice issued by the administrator to a claimant pursuant to N.J.A.C. 7:1J-6.6, notifying the claimant that the claimant's claim lacks sufficient information to support a determination that the claim is eligible for compensation from the Fund.

"Person" means any public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, individuals, the United States, the State of New Jersey and any of its political subdivisions or agents.

"Point-of-entry water treatment system" or "POET" means a water treatment system used to remove contaminants from the water entering a structure from a potable well.

"Potable water" means drinking water, water for other personal uses, and water for purposes requiring a supply of water which the Department determines is suitable for human consumption pursuant to the Safe Drinking Water regulations set forth at N.J.A.C. 7:10. "Potable water" does not include water for use in firefighting, for agricultural purposes, or for other non-potable purposes.

"Potentially responsible party" means any person who may have discharged a hazardous substance from which a claim arises, or may be responsible in any way for any hazardous substance from which a claim arises, including, without limitation, any of the following:

1. Any person whose act or omission results or has resulted in a discharge;

2. Each owner or operator of any land, facility, vehicle or vessel from which a discharge has occurred;

3. Any person who owns or controls any hazardous substance which is discharged;

4. Any person who has directly or indirectly caused a discharge;

5. Any person who has allowed a discharge to occur; or

6. Any person who brokers, generates or transports the hazardous substance discharged.

"Pre-Act discharge" means a discharge of a hazardous substance which occurred before April 1, 1977.

"Private water purveyor" means a water purveyor which is not a government entity. The term "private water purveyor" does not include a municipal utilities or county utilities authority organized pursuant to N.J.S.A. 40:14B.

"Spill Fund Claims Area," or "SFCA," means the geographic area delineated by the Department pursuant to N.J.A.C. 7:1J-3.6.

"Subject property" means property which is the subject of a claim.

"Threatened discharge" means any of the following circumstances with respect to a hazardous substance:

1. A hazardous substance which has not been discharged from a grounded or disabled vessel, if the Department determines that such removal is necessary to prevent an imminent discharge of such hazardous substance; or

2. A hazardous substance which has not been discharged, if the Department determines that such substance is not satisfactorily stored or contained and said substance possesses any one or more of the following characteristics:

i. Explosiveness;

ii. High flammability;

iii. Radioactivity;

iv. Chemical properties which in combination with any discharged hazardous substance at the same storage facility would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment;

v. Is stored in a container from which its discharge is imminent as a result of contact with a hazardous substance which has already been discharged and such additional discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or

vi. High toxicity and is stored or being transported in a container or motor vehicle, truck, railcar or other mechanized conveyance from which its discharge is imminent as a result of the significant deterioration or the precarious location of the container, motor vehicle, truck, railcar or other mechanized conveyance, and such discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment.

"Useful storage capacity" means that portion of a water storage facility capable of meeting the distribution system pressure requirements contained in N.J.A.C. 7:10-11.7(c) and 7:19-6.7.

"Water purveyor" means a person which owns, operates, manages or controls a water supply system, plant or equipment.

"Water Supply System Claim," or "WSSC," means a claim (whether asserted by a water purveyor or any other person) for compensation for construction and ancillary costs associated with providing an alternative supply of water required because of damage to an existing supply of water caused by a discharge of a hazardous substance. Ancillary costs shall not include the cost of operation, monitoring and maintenance.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Amended "Applicable containment standard", "Damages", "Person", "Potable water", and added paragraph 7 to "Damages".
• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• Inserted "Covenant not to sue", Engineering controls", "Institutional controls" and "No further action letter".
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Rewrote definition "Applicable contaminant standard"; in definition "Most probable pollutant transport rate", deleted "or other applicable maximum level" following "standard"; in definition "No further action letter", updated the N.J.A.C. reference; added definition "Point-of-entry water treatment system"; in definition "Potable water", substituted a comma for "or" following "firefighting", and inserted ", or for other non-potable purposes"; and in definition "Water Supply System Claim", inserted the last sentence.
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• Rewrote definition "Covenant not to sue"; added definition "Final remediation document"; and deleted definition "No further action letter".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

N.J. Admin. Code § 7:1J-1.5 Delegation

The administrator may delegate administrative, supervisory, or investigatory authority to members of the Department's staff. The administrator may enter into contracts on behalf of the Fund or the Department for the performance of services ancillary to the powers and duties of the administrator under the Act, including, but not limited to, the performance of claims adjustment services.

N.J. Admin. Code § 7:1J-1.6 Signatures; certifications

(a) All claims, and all affidavits required under this chapter, shall be signed by the claimant and notarized, as follows:

1. If the claimant or affiant is a corporation, the claim or affidavit shall be signed by a person authorized by a resolution of the claimant's board of directors to sign the document in question. The claimant or affiant shall submit with the document a copy of the resolution of the claimant's board of directors authorizing the person to sign the document. The copy of the resolution shall be certified as a true copy by the secretary of the corporation.

2. If the claimant or affiant is a partnership, the claim or affidavit shall be signed by a general partner of the partnership.

3. If the claimant or affiant is a sole proprietorship, the claim or affidavit shall be signed by the proprietor of the proprietorship.

4. If the claimant or affiant is a municipality, local unit, State, Federal or other public agency, the claim or affidavit shall be signed by a principal executive officer of such entity, the ranking elected official of such entity, or the designee of such principal executive officer or ranking elected official. If the claim or affidavit is signed by a designee, the claimant shall submit with the claim or affidavit a copy of the document authorizing the designee to sign the claim or affidavit.

5. If the claimant or affiant is a natural person, the claim or affidavit shall be signed by the claimant or affiant, provided however, that if the claimant or affiant is a minor, is incompetent as defined under New Jersey law, or is deceased, the claim or affidavit shall be signed by the claimant's parent, guardian, executor, or court appointed representative, as applicable.

(b) All claims, and all affidavits required by this chapter, shall contain the following certification, signed by the person required to sign the claim or affidavit:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted herein and all attached documents, and that based on my inquiry of those individuals immediately responsible for obtaining the information, to the best of my knowledge, I believe the information submitted is true, accurate and complete. I am aware that there are significant civil penalties for knowingly submitting false, inaccurate or incomplete information, and that I am committing a crime in the fourth degree if I make a written false statement which I do not believe to be true. I am also aware that if I knowingly direct or authorize the violation of any statute, I am personally liable for penalties."

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).
• In (b), added language detailing criminal liability for false statements.

N.J. Admin. Code § 7:1J-1.7 Notices and other communications

(a) Subject to (c) below, all claims, notices, requests and other communications required or permitted under this chapter shall be given in writing and sent by certified mail, return receipt requested or by other means which provides a receipt showing the date of mailing and the date of delivery. All communications submitted pursuant to this subsection shall be sent to the Department by certified mail to the following address:

Department of Environmental Protection

Environmental Claims Administration

PO Box 413

Trenton, New Jersey 08625-0413

All such communications sent to the Department by means for which a street address is required by the carrier shall be sent to the following address:

Department of Environmental Protection

Environmental Claims Administration

401 East State Street

Trenton, New Jersey 08609

All such communications to the claimant shall be sent to the mailing address set forth in the claim under N.J.A.C. 7:1J-6.3(a)3, unless the claimant directs otherwise under N.J.A.C. 7:1J-6.7.

(b) Subject to (c) below, all invoices for compensation for POET installation, operation and maintenance shall be submitted in an electronic format acceptable to the Department, and in accordance with the following:

1. Invoices for the cost of the installation of a POET shall be submitted within 60 days after the installation a POET;

2. Invoices for the cost of the operation and maintenance of the POET shall be submitted within 60 days after each date on which the POET is serviced;

3. The results of all analytical monitoring for POETs required by the Department shall be submitted within 60 days after each sampling event; and

4. Any invoices and analytical monitoring data submitted electronically under this subsection may be submitted to the Department by a water treatment vendor or laboratory that is chosen by the claimant to provide these services.

(c) Electronic submittal of invoices and analytical monitoring data for POET claims as required pursuant to (b) above shall be required on or after the date that is 60 days from the date that the Department publishes a notice in the New Jersey Register that the Department's system for receiving electronic submittals is functioning. All claims other than POET claims shall continue to be submitted in accordance with (a) above.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Inserted designation (a); in (a), substituted "Subject to (c) below, all" for "All", updated the first address, deleted "such" preceding the second occurrence of "communications" and "shall be sent" following the second occurrence of "mail", and inserted "submitted pursuant to this subsection shall be"; and added (b).

N.J. Admin. Code § 7:1J-1.8 Computation of time

(a) In computing any period of time fixed by or under this chapter, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday.

(b) In computing any period of time fixed by or under any provision of this chapter, "days" shall mean calendar days, unless the provision specifies working days.

Subchapter 2 CLAIMS GENERALLY

N.J. Admin. Code § 7:1J-2.1 Persons who may submit a claim

Any person claiming to have incurred damages may submit to the Department a claim for such damages. No subrogee or assignee of a person who has incurred damages may submit a claim. No claim by a subrogee or assignee of a person who has incurred damages shall be eligible for compensation from the Fund.

N.J. Admin. Code § 7:1J-2.2 Provisions applicable to all claims

(a) The provisions of N.J.A.C. 7:1J-1, 2, 6, 7, 8 and 9 are applicable to all claims made pursuant to this chapter, including without limitation water supply system claims pursuant to N.J.A.C. 7:1J-3, and property value diminution claims pursuant to N.J.A.C. 7:1J-4. The provisions of N.J.A.C. 7:1J-1, 2 and 6 are applicable to emergency response claims by local units pursuant to N.J.A.C. 7:1J-5; the provisions of N.J.A.C. 7:1J-7, 8 and 9 are not applicable to emergency response claims by local units pursuant to N.J.A.C. 7:1J-5.

(b) The administrator shall prioritize the categories of claims that are eligible for compensation in the following order:

1. Potable water restoration and vapor intrusion mitigation at residential properties;

2. Potable water restoration and vapor intrusion mitigation at schools and child care facilities; and

3. All other categories of claims.

History

• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Inserted designation (a); and added (b).

N.J. Admin. Code § 7:1J-2.3 Burden of proof

No claim shall be eligible for compensation from the Fund unless the claimant shows by a preponderance of the evidence that the claim satisfies all requirements for eligibility under the Act and this chapter, and that the amount of the claim correctly reflects and is reasonable in relation to the damages which the claimant has sustained.

N.J. Admin. Code § 7:1J-2.4 Damages actually incurred; mitigation

(a) A claim shall not be eligible for compensation from the Fund unless the claimant has actually suffered the damages which are the subject of the claim. A claim shall be ineligible for compensation from the Fund to the extent that the damages which are the subject of the claim are contingent or speculative.

(b) A claim shall be ineligible for compensation from the Fund to the extent that the claimant has received compensation from any other source for damages which are the subject of the claim. The claimant shall exercise best efforts to obtain compensation from any other source from which compensation is reasonably likely to be available, including, without limitation, insurance policies, court awards, contractual rights, grants or other financial assistance from the Hazardous Discharge Site Remediation Fund, N.J.S.A. 58:10B-4, the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund, N.J.S.A. 58:10A-37.3 and any other remedies provided under statutory or common law (including, without limitation, remedies with respect to a potentially responsible party under N.J.A.C. 7:1J-7). In determining the amount of the award, if any, the administrator shall reduce the award by the amount of compensation already received by the claimant for the damage which is the subject of the claim. The administrator may suspend processing of any claim pending the completion of the claimant's efforts to obtain compensation from such other sources.

(c) The claimant shall exercise reasonable diligence and ordinary care to mitigate or to prevent the damages by the claimant from increasing or being aggravated. Additional damages that are the result of claimant's failure to mitigate damages shall not be eligible for compensation from the Fund.

(d) A claim shall not be eligible for compensation from the Fund if the claimant knew or should have known at the time of purchase that the property which is the subject of the claim is contaminated or otherwise impacted by a discharge of hazardous substances.

(e) A claim shall be eligible for compensation from the Fund only to the extent that the claim is for costs associated with remediation which the Department has determined to be an environmentally sound means of ameliorating the damages resulting from a discharge, and cost effective. Environmentally sound remediation is remediation conducted in accordance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E. To determine if the remediation is cost-effective, the Department shall consider initial capital costs, 20-year operation and maintenance costs, monitoring costs, the Department's administrative costs, reliability and feasibility of implementation.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Amended (b) and (c) and added new (d) and (e).
• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (b), inserted references to court awards, and to grants or other financial assistance from the Hazardous Discharge Site Remediation Fund and the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund in the second sentence.
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• In (e), inserted "the Department's administrative costs,".

N.J. Admin. Code § 7:1J-2.7 Claims by responsible parties or by owners or occupants of property from which discharge has emanated

(a) If a person in any way responsible for a discharge which is the subject of the claim, or for any hazardous substance which is the subject of the claim makes a claim in connection with the subject discharge, the claim shall be ineligible for compensation from the Fund unless:

1. The claimant is the owner or operator of a major facility or vessel responsible for the discharge; and

2. The claimant establishes one or more of the defenses provided under N.J.S.A. 58:10-23.1 1g(d).

(b) If, after a discharge occurs, a person purchases or otherwise voluntarily acquires or obtains title to the land from which the discharge emanated, claims by such purchaser in connection with the discharge are ineligible for compensation from the Fund, unless such purchaser can establish to the satisfaction of the Department that the claim satisfies one of the following requirements:

1. Despite exercising reasonable diligence and intelligence before purchasing or otherwise acquiring or obtaining title to the land, the claimant did not discover until after purchasing or otherwise acquiring or obtaining title to the land that any hazardous substance has been discharged or was discharging from the property in question; and, before purchasing or otherwise acquiring or obtaining title to the land, the claimant conducted a diligent and thorough inquiry into previous ownership and uses of the property;

2. The claimant is a government entity and acquired the property by escheat or other involuntary transfer or by operation of law, and not by any affirmative or voluntary act such as exercise of the power of eminent domain. If the government entity acquired or obtained title to the property by an affirmative or voluntary act, the standard set forth in (b)1 above shall govern eligibility of the government entity's claim; or

3. The claimant acquired the subject property after the issuance of a final remediation document concerning the subject property or a portion of the subject property and all of the following apply:

i. The remediation which is the subject of the final remediation document involves the use of an institutional control only;

ii. The claimant is a person who is relieved from liability pursuant to N.J.S.A. 58:10-23.11g(d) or (f) for the contamination at the subject property; and

iii. The claim is for the payment of damages in response to a Department order that the claimant conduct additional remediation at the subject property; except if the order is for any additional remediation that is required to remove an institutional control.

(c) Notwithstanding (a)2 above, a claimant who is relieved from liability pursuant to N.J.S.A. 58:10-23.11g(d) is not eligible for compensation from the Fund if the claimant:

1. Benefits from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for a remediation that involves engineering controls at the property, or acquired the subject property after the issuance of the final remediation document for a remediation at the subject property that involves the use of engineering controls and seeks payment for damages relating to the real property and remediation covered by the covenant not to sue; or

2. Benefits from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for a remediation that involves only the use of institutional controls at the subject property, or acquired the subject property after the issuance of a final remediation document for a remediation at the subject property that involves only the use of institutional controls, if the damages claimed proximately result from removing the institutional controls from the subject property.

History

• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (b), added 3 and made a corresponding language change; and added (c).
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• In the introductory paragraph of (b)3, substituted "issuance of a final remediation document" for "Department issued a No Further Action letter"; in (b)3i, substituted "final remediation document" for "No Further Action letter"; and in (c)1 and (c)2, deleted "issued by the Department" following "sue", inserted "or N.J.S.A. 58:10C-31" and substituted "issuance of the final remediation document" for "Department issued a no further action letter".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

N.J. Admin. Code § 7:1J-2.8 Administrative closure of claims

(a) The administrator may, in his or her discretion, administratively close any claim for which the claimant has:

1. Failed to take actions required by this chapter within 60 days after the claimant was required to take such action; or

2. Failed to respond to a request for information by the Department within the time period set forth in the request.

(b) Administrative closure of a claim is without prejudice. The claimant may reactivate the claim by rectifying the failure under (a)1 or 2 above and making a written request to the Department for reactivation within six months of receiving notice of administrative closure from the Department.

(c) Before closing a claim under (a) above, the administrator shall send the claimant written notice of the administrator's intent to administratively close the claim. The administrator shall state in the written notice the reason for the administrative closure, and the procedure to avoid administrative closure under (d) below.

(d) The administrator shall administratively close the claim unless:

1. Within 30 days after the claimant's receipt of the notice described in (c) above, the claimant has submitted to the Department an affidavit explaining why the claim should not be administratively closed (which affidavit may include an explanation of why the time allotted to take action or provide information was insufficient); and

2. The administrator determines that the affidavit provides an adequate explanation of why the claim should not be administratively closed.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).
• In (b), added a six month time limit to reactivate a claim.

Subchapter 3 WATER SUPPLY SYSTEMS CLAIMS

N.J. Admin. Code § 7:1J-3.1 Eligibility of water supply systems claims for compensation

(a) Water Supply Systems Claims (WSSCs) are eligible for compensation from the Fund only in accordance with the requirements of this chapter, and only to the extent permitted under this subchapter.

(b) If the Department determines that as a result of a discharge, a water purveyor's existing supply of water is or will become unsuitable to serve the needs of the water purveyor's existing customers, the water purveyor may make a WSSC for the cost of replacing or treating the existing water supply. No portion of such a WSSC which represents costs beyond those necessary to replace or treat the existing water supply is eligible for compensation from the Fund. Such a WSSC is eligible for compensation from the Fund only in accordance with those requirements of this chapter which are listed at (b)1 through 8 below, and only to the extent permitted under such listed requirements.

N.J.A.C. 7:1J-3.1(b);

N.J.A.C. 7:1J-3.2;

N.J.A.C. 7:1J-3.3;

N.J.A.C. 7:1J-3.5(c) and (d);

N.J.A.C. 7:1J-3.6;

N.J.A.C. 7:1J-3.7;

N.J.A.C. 7:1J-3.8; and

N.J.A.C. 7:1J-3.9.

N.J. Admin. Code § 7:1J-3.2 Spill Fund claims area

(a) To be compensable from the Fund, costs expanded by a claimant in connection with a WSSC shall be either:

1. Directly associated with damages to natural resources located within the Spill Fund Claims Area (SFCA), if the Department has delineated an SFCA;

2. Directly associated with supplying potable water to real property in an area within or outside the SFCA for which the Department has determined, pursuant to the Safe Drinking Water regulations set forth at N.J.A.C. 7:10, that the existing source of potable water is unsuitable for human consumption due to a discharge; or

3. Directly associated with damages to natural resources resulting from a discharge, notwithstanding whether the Department has delineated an SFCA.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).

N.J. Admin. Code § 7:1J-3.3 Most cost-effective environmentally sound alternative

(a) A WSSC shall be eligible for compensation from the Fund only if the WSSC is for costs associated with remedial actions which the Department has determined to be an environmentally sound means of ameliorating the damages resulting from a discharge.

(b) A WSSC shall be eligible for compensation from the Fund only to the extent of the cost (as such cost is determined by the Department) of the most cost-effective means which the Department has determined to be an environmentally sound means of ameliorating the damages resulting from a discharge. To determine what remedy is the most cost-effective, for each alternative the Department will consider initial capital costs, 20-year operation and maintenance costs, monitoring costs, the Department's administrative costs, reliability, feasibility of implementation, and acceptability to the public.

(c) Operation, maintenance and monitoring costs for a WSSC by a water purveyor shall not be included as part of the evaluation of water system alternatives.

(d) The Department may evaluate alternatives as well as any new technologies, to determine whether any other environmentally sound means of ameliorating the damages resulting from a discharge are more cost-effective than the remedial actions for which the claim has been made. Such alternatives may include, without limitation, the following (or any combination thereof):

1. Filtration of water supply at point of entry;

2. Extension of existing water lines;

3. Drilling of deeper wells for individual residences;

4. Provision of interim alternative water supplies, such as bottled water or waterbuffaloes;

5. Containment of discharge and treatment of water supply;

Stand-alone satellite water supply systems/installation of production wells;

7. Contaminant removal;

8. No remedial action;

9. Drilling new wells;

10. Treatment of the contaminated water supply, by methods such as air stripping or filtration; and/or

11. Any other remediation in accordance with N.J.A.C. 7:26E.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Added new (c)11.
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• In (b), inserted "the Department's administrative costs,"; added new (c); and recodified former (c) as (d).

N.J. Admin. Code § 7:1J-3.4 Reductions in costs eligible for compensation if alternative water supply actually constructed exceeds requirements for provision of adequate alternative water supply

(a) If a WSSC is a claim for compensation for the cost of a water well or wells, the amount otherwise eligible for compensation from the Fund shall be reduced as follows:

1. The amount eligible for compensation from the Fund shall be reduced by the following amount:

| RA = AC - NC | | --- |

where:

i. RA equals the amount of the reduction;

ii. AC equals the cost (including without limitation construction costs, design and engineering costs, and finance charges incurred in the design and construction of the water well or wells) of the water well or wells actually constructed; and

iii. NC equals the cost (including without limitation construction costs, design and engineering costs, and finance charges incurred in the design and construction of the water well or wells), estimated by the Department after consideration of the report submitted under (a)2 below, of constructing the water well or wells with the minimum capacity necessary to supply potable water to the affected area. Such minimum necessary capacity shall be the amount required to satisfy the users' requirements set forth in (d) below.

2. The claimant shall cause the water purveyor to submit a report (or, if the water purveyor is the claimant, the water purveyor shall submit the report), certified by a licensed professional engineer, setting forth the following:

i. Such information as is required to satisfy the requirements of N.J.A.C. 7:10-11.2(c)3 and 4, with respect to the water well or wells actually constructed; and

ii. The design and specifications of the water well or wells that would be required to provide an adequate supply of potable water to the total number of residential and nonresidential users listed in (d) below. The engineer's computation of such design and specifications shall be justified by hydraulic analysis without consideration of additional capacity necessary for use in firefighting or future demand. The engineer's report shall contain a calculation of the minimum necessary capacity of the wells determined in accordance with (a)1 above.

(b) If a WSSC is a claim for compensation for the cost of water storage facilities, the amount otherwise eligible for compensation from the Fund shall be reduced as follows:

1. The amount eligible for compensation from the Fund shall be reduced by the following amount:

| RA = AC - NC | | --- |

where:

i. RA equals the amount of the reduction;

ii. AC equals the cost (including without limitation construction costs, design and engineering costs, and finance charges incurred in the design and construction of the water storage facilities) of the water storage facilities actually constructed; and

iii. NC equals the cost (including without limitation construction costs, design and engineering costs, and finance charges incurred in the design and construction of the water storage facilities), estimated by the Department after consideration of the report submitted under (b)2 below, of the water storage facilities with the minimum useful storage capacity necessary to supply potable water sufficient to satisfy the users' requirements set forth in (d) below. Such capacity shall be the minimum necessary to satisfy the requirements of N.J.A.C. 7:19-6.7, and maintain a minimum of 20 pounds per square inch gauge (psig) water pressure at street level throughout the distribution network, under all required flow conditions, but shall not include any additional capacity required for use in firefighting.

2. The claimant shall cause the water purveyor to submit a report (or, if the water purveyor is the claimant, the water purveyor shall submit the report), certified by a licensed professional engineer, setting forth the following:

i. Such information as is required to satisfy the requirements of N.J.A.C. 7:10-11.8, with respect to the water storage facilities actually constructed; and

ii. The design and specifications of the water storage facilities that would be required to provide an adequate supply of potable water to the total number of residential and nonresidential users listed in (d) below. The engineer's computation of such design and specifications shall be justified by hydraulic analysis without consideration of additional capacity necessary for use in firefighting and future demand. The engineer's report shall contain a calculation of the minimum useful storage capacity necessary to supply potable water to the users described in (d) below.

(c) If a WSSC is a claim for compensation for the cost of water transmission and distribution lines, the following restrictions apply:

1. The amount eligible for compensation from the Fund for the cost of the construction of a water transmission and distribution line shall be limited to the cost of a six- or eight-inch diameter water line. If the claimant chooses to install a larger diameter water line, the claimant must pay the difference between the cost of the six- or eight-inch diameter water line and the cost of the larger water line.

2. If any section of transmission or distribution line has been extended beyond the point necessary to service any property within the affected area, then any and all costs associated with that section of line beyond the boundary of the affected area shall be the sole responsibility of the water purveyor and will not be eligible for compensation from the Fund. This exclusion from eligibility shall not apply to extensions which the Department has stated in writing are required for effective operation of the water system.

(d) For the purpose of calculating the minimal capacity needed for water wells under (a) above and water storage facilities under (b) above, the potable water requirement of the users of such wells or storage facilities is the aggregate of the potable water requirements listed in (d)1, 2 and 3 below.

1. The potable water requirements of residential users in the affected area equals the following:

| RR = (R x 360 PF) | | --- |

where:

i. RR equals the potable water requirements of residential users in the affected area;

ii. R equals the sum of (1) and (2) below:

(1) The number of single-family residences within the affected area which are in existence or under construction, or for which building permits have been issued, before the Department delineated the SFCA; and

(2) The number of tax lots contained in the affected area upon which no residences or nonresidential improvements have been constructed or are under construction as of the time when the Department delineated the SFCA, and for which no building permit to construct one or more residences or nonresidential improvements has been issued prior to the time when the Department delineated the SFCA;

iii. 360 represents a potable water requirement of 360 gallons per day (gpd) per bedroom to serve each single-family residence; and

iv. PF represents the peaking factor by which the 360 gpd requirement will be multiplied, which peaking factor will be equal to two unless the Department determines that a different peaking factor would be more accurate.

2. The potable water requirements of nonresidential and multifamily users are set forth in the following table, and include all nonresidential and multifamily residential facilities within the affected area which are in existence or under construction, or for which building permits have been issued, prior to the time when the Department delineated the SFCA:

| Type of Establishment | Potable requirements (in GPD per person except as noted) | | --- | --- | | 1.Apartment buildings (assuming one person per bedroom) | 75 | | 2.Rooming houses | 50 | | 3.Boarding houses | 75 | | Add for each nonresident boarder: | 15 | | 4.Hotels | 75 | | Add if laundry facilities are on premises: | 37.5 | | 5.Motels and tourist cabins | 75 | | 6.Mobile home parks | 100 | | 7.Restaurants | 10 | | 8.Camps | | | Barracks type | 50 | | Cottage type | 40 | | Day camps | 15 | | 9.Day schools | 10 | | Add for cafeteria: | 5 | | Add for showers: | 5 | | Add for laboratories: | 5 | | 10.Boarding schools | 100 | | Add if laundry facilities are on premises: | 50 | | 11.Industrial property (per eight hour shift) | 25 | | 12.Hospitals (depending on type) | 150-250 | | 13.Institutions other than hospitals | 75-125 | | 14.Picnic grounds and comfort stations | 10 | | Add if showers are on premises: | 5 | | 15.Swimming pools and bathhouses | 10 | | 16.Clubhouses (per resident member) | 60 | | Add per nonresident member: | 25 | | 17.Nursing homes | 150 | | 18.Campgrounds (GPD per individual sewer hookup) | 100 | | Add if laundry facilities are on premises: | 50 | | 19.Retail and office space (GPD per square foot) | .125 | | 20.Self-service laundries (gallons per wash) | 50 |

To determine the well capacity or storage capacity required to serve the above establishments, the potable water requirements set forth in the table shall be multiplied by a peaking factor of two, unless the Department determines that a different peaking factor would be more accurate. To determine the instantaneous water demands of the above establishments for the purpose of calculating the required capacity of transmission or distribution lines, the potable water requirements set forth in the table shall be multiplied by the peaking factor provided under (c)3i above.

3. The potable water requirements of agricultural, silvicultural, industrial or other users not listed in the table at (d)2 above are actual requirements of all such users which are located in the affected area and meet the requirements of both 3i and ii below:

i. Before the Department delineated the SFCA, the user's facility was in existence or under construction, or a building permit had been issued for its construction;

ii. The user is unable to use the existing source of potable water, because such source has become unsuitable for the user's particular use as a result of the discharge; and

iii. Connection to the replacement water supply system is the most cost-effective environmentally sound means of remedying the damages incurred by the user as a result of the discharge.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• In (d), changed formula for potable water requirements.
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• In (a)2ii and (b)2ii, inserted "or future demand"; and rewrote (c).

N.J. Admin. Code § 7:1J-3.5 Other reductions in amount eligible for compensation from Fund

(a) If the water supply system which is the subject of the claim is to be operated by a private water purveyor, the aggregate amount eligible for compensation from the Fund for such water supply system shall be reduced by an amount calculated in accordance with the Board of Public Utilities' All Utilities rules at N.J.A.C. 14:3-8.

(b) If the claimant is the water purveyor, the amount eligible for compensation from the Fund shall be reduced further by the surplus debt service payments received by the water purveyor, calculated as follows:

| (DSP) (NR) | | | --- | --- | | SDSP = | ---------- | | ER | |

where:

1. SDSP represents the surplus debt service payments;

2. DSP equals the aggregate amount of the payments due on all debt obligations of the water purveyor reflected in the computation of the water purveyor's rates, and incurred before the making of the WSSC, which payments are due during the period beginning on the date on which water service commences to new ratepayers not previously served by the water purveyor before the construction of the water supply system which is the subject of the claim, and ending on the first anniversary of the effective date of the water purveyor's rates in effect as of the commencement of such service;

3. NR equals the number of new ratepayers served by the new water supply system, who were not served by such water purveyor before the construction of such facilities; and

4. ER equals the number of existing ratepayers served by the water purveyor immediately prior to the making of the WSSC.

(c) No portion of the cost of any water supply system which had been installed or for which installation had begun before the discharge, and which commences operation after the discharge, shall be eligible for compensation from the Fund.

(d) If all or part of the cost of any water supply system has been paid from the Fund, no part of the cost incurred in connection with any replacement equipment for such system shall be eligible for compensation from the Fund. If, as a result of an error or omission in the design, construction, installation or operation of a water supply system, corrective action (including, without limitation, the installation of replacement or additional equipment) is necessary for proper operation of the water supply system, no part of the cost of such corrective action shall be eligible for compensation from the Fund.

(e) Costs required under Board of Public Utilities (BPU) regulations: No costs which a water purveyor is required to incur under regulations promulgated by the BPU (including, without limitation, the cost of the work to be done under N.J.A.C. 14:9-2.1 upon making service connections) shall be eligible for compensation from the Fund. The cost of the installation of a water meter is eligible for compensation from the Fund.

(f) If the water purveyor or a government entity has charged fees or other costs for connecting individual properties to the water supply system which is the subject of the claim, the amount of the water purveyor or government entity's claim, eligible for compensation from the Fund shall be reduced by the aggregate amount of such fees or costs.

(g) With respect to any connection fee or tapping fee which the claimant pays for connection of any property to the water system, only the portion of such fee which represents the actual cost of the physical connection shall be eligible for compensation from the Fund. Any portion of such fee which represents other amounts allowed under N.J.S.A. 40:14B-21 is ineligible for compensation from the Fund.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Rewrote (a); and in (e), deleted "the cost of meters required to be provided under N.J.A.C. 14:3-4.1, and" following "limitation,", and inserted the last sentence.

N.J. Admin. Code § 7:1J-3.6 Delineation of Spill Fund Claims Area (SFCA)

The Spill Fund Claims Area (SFCA) is the geographic area delineated by the Department, consisting of the currently known extent of ground water pollution determined by the Department pursuant to N.J.A.C. 7:1J-3.7. The Department may include in the SFCA the most probable pollution migration zone determined by the Department pursuant to N.J.A.C. 7:1J-3.8.

History

• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Substituted ". The Department may include in the SFCA" for ", combined with".

N.J. Admin. Code § 7:1J-3.7 Currently known extent of ground water pollution

(a) The currently known extent of ground water pollution is the volumetric extent of ground water in which concentrations of one or more hazardous substances exceed the applicable contaminant standard for such hazardous substances.

(b) The delineation of the currently known extent of ground water pollution shall be based upon sampling data collected by the Department or by other persons approved by the Department in writing, pursuant to a sampling plan approved by the Department in writing. Such sampling data shall be plotted on a copy of the tax map of the municipality in which the sampling is being performed.

N.J. Admin. Code § 7:1J-3.8 Most probable pollution migration zone

(a) The most probable pollution migration zone is the volumetric extent of ground water for which the Department determines under (b) below that, within the remediation period (as defined below), it is most probable that concentrations of one or more hazardous substances in ground water will exceed the applicable contaminant standard for any such hazardous substances. The remediation period shall be the three years after delineation of the Spill Fund Claims Area, unless the Department determines, in its best professional judgment based upon the particular circumstances of the aquifer contamination, that the remediation of the aquifer contamination will not be completed within three years. In such event, the remediation period shall be the time the Department estimates for the completion of the remediation, in its best professional judgment based upon the particular circumstances of the aquifer contamination.

(b) The delineation of the most probable pollution migration zone is based upon the most probable ground water flow directions, and the most probable pollutant transport rate, for each hazardous substance present in the ground water. In delineating the most probable pollution migration zone, the Department will consider factors including, without limitation, ground water elevations, the location and distribution of pumping wells, the distribution and concentration of pollutants in affected wells, topography, and geology.

(c) The Department shall calculate the most probable pollutant transport rate pursuant to the following formula: Data in image

(d) The most probable pollutant transport rate (expressed in feet per day), multiplied by the remediation period (expressed in days), yields the migration distance. The migration distance, projected along the most probable ground water flow directions from the currently known extent of ground water pollution (that is, the leading edge of the plume), yields the most probable pollution migration zone.

N.J. Admin. Code § 7:1J-3.9 Cost of obtaining estimate by Department consultant of amount eligible for compensation

(a) Upon the written request of a government entity claimant, accompanied by preliminary plans and specifications for the water supply system which is the subject of a WSSC (including, without limitation, the engineer's reports required under N.J.A.C. 7:1J-3.4(a)2, (b)2 and (c)2), the Department shall cause its consultant to review such plans and specifications and make a preliminary estimate of the amount of the WSSC which will be eligible for compensation from the Fund. The Department shall not be bound or estopped by the preliminary estimate in making a final determination of the amount of the claim eligible for compensation, if there are any changes in the preliminary plans and specifications which are the subject of the preliminary estimate, or if the Department finds that there are errors, omissions or other changes necessary from the preliminary plans and specifications, or if there are other changes in circumstances affecting the WSSC.

(b) The preliminary estimate prepared under (a) above shall be at the claimant's expense. Before the preliminary estimate is performed, the Department shall inform the claimant of the cost of the preliminary estimate, and shall cause the preliminary estimate to be performed only if the claimant provides the Department with written consent to the performance of the estimate at the claimant's expense. The amount eligible for compensation from the Fund shall be reduced by the cost of such estimate.

N.J. Admin. Code § 7:1J-3.10 Sealing of well

The administrator shall require as a condition of receiving compensation from the Fund for an alternate water supply, that within 60 days after the connection to a water supply system, the claimant shall decommission and permanently seal the contaminated well pursuant to N.J.A.C. 7:9D-3. The administrator may approve an exemption from this requirement for a well that is used in a geothermal heating and cooling system.

History

• New Rule, R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Rewrote the section.

Subchapter 4 PROPERTY VALUE DIMINUTION CLAIMS

N.J. Admin. Code § 7:1J-4.1 Extent of eligibility

Claims for diminution of property value shall be eligible for compensation from the Fund only to the extent that such diminution is attributable to the discharge of a hazardous substance. A diminution of property value may be deemed attributable to a discharge of a hazardous substance notwithstanding the lack of any physical intrusion of the hazardous substance onto the subject property. A diminution in the value of any improvements to the subject property made after the date of discovery of damages shall not be eligible for compensation from the Fund.

N.J. Admin. Code § 7:1J-4.2 Requirements for eligibility

(a) Except for claims settled under N.J.A.C. 7:1J-4.6 or 4.7, claims for diminution of property value are not eligible for compensation by the Fund unless the claimant has sold the subject properties and the administrator determines that the claimant's sale of the subject property was in good faith, based upon the appraisals made pursuant to N.J.A.C. 7:1J-4.3, 4.4 and the information submitted pursuant to N.J.A.C. 7:1J-4.5.

(b) The claimant shall list the subject property for sale with one or more licensed real estate brokers who are members of a multiple listing service (or its commercial equivalent for nonresidential property). The claimant shall so list the subject property for sale continuously, until entering into an agreement for the sale of the subject property; provided, however, that discontinuities made necessary by claimant's good faith choice to list the subject property with another broker shall not be deemed to violate this requirement. One discontinuity of less than 14 days shall presumed to be in good faith.

(c) Claimants may file a property value diminution claim with the Department prior to the sale of property.

(d) All claimants shall provide the Department with an executed copy of a contract for sale of the subject property within 30 days after signature, and shall provide the Department or its agents with access to the property to conduct an appraisal and inspection.

(e) On or after March 2, 2009, a claim for property value diminution shall not be eligible for compensation from the fund where, at the expense of the Fund, a POET has been installed and maintained at the property that is the subject of the claim, or where the property that is the subject of the claim has been connected to a public or private municipal water system at the expense of the Fund. Additionally, a claim for property value diminution shall not be eligible for compensation from the Fund where such claimant was offered, but declined, a POET or a water line connection as compensation from the Fund.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Added new (c) and (d).
• Amended by R.2009 d.75, effective 3/2/2009.
• See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
• Added (e).

N.J. Admin. Code § 7:1J-4.3 Appraisal of subject property

(a) After the claimant has elected under N.J.A.C. 7:1J-4.9 to pursue the claim, or in the case of a new claim filed after January 4, 1993, the administrator shall obtain appraisals of the value of the subject property. The appraisals shall be as of the time of the sale of the subject property (or, for claims under N.J.A.C. 7:1J-4.6 or 4.7, as of the date the administrator makes the settlement offer). One such appraisal shall state the value of the subject property as affected by the discharge (unless the administrator elects not to obtain such an appraisal, pursuant to (b) below), and one appraisal shall state the value of the subject property absent the effect of the discharge. The appraisals may, in the administrator's discretion, be based upon one or more of the following factors:

1. Sales of comparable properties in the immediate area;

2. Income generated by the subject property;

Replacement cost of the subject property; and/or

4. Such other factors as are ordinarily considered by real estate appraisers who are members of the Appraisal Institute or who are licensed or certified to perform real estate appraisals in New Jersey.

(b) The administrator may elect not to obtain an appraisal of the subject property as affected by the discharge if the administrator determines, in his or her discretion, that there is insufficient information to obtain a meaningful appraisal of the subject property reflecting the effect of the discharge. Without limiting the discretion of the administrator under this subsection, the administrator may determine that there is insufficient information if fewer than three comparable properties which have been affected by the discharge have been sold as of the date on which the claim is filed.

N.J. Admin. Code § 7:1J-4.4 Valuation of claim

(a) If the administrator has obtained appraisals pursuant to N.J.A.C. 7:1J-4.3(a), the amount of the claim eligible for compensation from the Fund shall be computed by the difference between (a)1 and 2 below, adjusted in accordance with (c) below:

1. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1J-4.3(a), excluding the effect of the discharge on such value; and

2. The greater of:

i. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1J-4.3(a), reflecting the effect of the discharge on such value; or

ii. The price actually obtained by the claimant upon the sale of the subject property, without closing adjustments.

(b) If, pursuant to N.J.A.C. 7:1J-4.3(b), the administrator has elected not to obtain an appraisal of the subject property as affected by the discharge, the amount of the claim eligible for compensation from the Fund shall be equal to the difference between (b)1 and 2 below, adjusted in accordance with (c) below:

1. The appraised value of the subject property determined pursuant to N.J.A.C. 7:1J-4.3(a), excluding the effect of the discharge on such value; and

2. The price actually obtained by the claimant upon the sale of the subject property, without closing adjustments.

(c) The administrator may, in his or her discretion, adjust the amount determined pursuant to (a) or (b) above by considering other information available to the administrator which supports a conclusion that the amount determined pursuant to (a) or (b) above does not accurately reflect the diminution in the value of the subject property resulting from the discharge. Such information may include, but is not limited to, any of the following:

1. Information concerning sales of comparable properties considered in establishing an appraisal pursuant to N.J.A.C. 7:1J-4.3(a), indicating that factors other than the discharge affected the sale prices of such properties. Such information may include, without limitation, the prices of comparable properties within and outside the area in which the discharge may have affected real property values; the time elapsed between listing for sale and execution of an agreement of sale for comparable properties within and outside the area in which the discharge may have affected real property values; and specific terms of the agreements of sale (such as financing terms, personal property included in the sale, and apportionments of closing costs);

2. Information concerning sales of comparable properties considered in establishing an appraisal pursuant to N.J.A.C. 7:1J-4.3(a), indicating that such properties have characteristics which distinguish them from the subject property, and which affect the values of such properties;

3. Information concerning the sale of the subject property, indicating that the difference between the sale price and the appraised value of the property reflected factors other than the discharge. Such information may include, but is not limited to, the time elapsed between listing of the subject property for sale and execution of an agreement of sale; the length of time the subject property was offered for sale; the nature and number of any offers to purchase the subject property; the difference between the initial listing price and the sale price; the number and extent of intermediate reductions in the listing price; specific terms of the agreement of sale for the subject property (such as financing terms, personal property included in the sale, and apportionments of closing costs); data concerning the real estate market generally at the time of the sale of the subject property; and other evidence of the good faith nature of the sale required to be submitted under N.J.A.C. 7:1J-4.5; and

4. The effect of the cleanup and removal of a discharged hazardous substance or of other amelioration of the damages resulting from a discharge.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).

N.J. Admin. Code § 7:1J-4.5 Evidence of good faith sale

(a) Except as provided in N.J.A.C. 7:1J-4.7 and 4.8, within 60 days after the closing of a sale of the subject property, the claimant shall submit the following documents to the Department:

1. Copies of all listing agreements for the sale of the subject property;

2. Copies of all written offers to purchase the subject property;

3. A copy of the contract of sale of the subject property;

4. Copies of all settlement statements, including without limitation the HUD-1 Uniform Settlement Statement form if required by 24 CFR 3500.8;

5. A copy of the deed conveying the subject property, together with a copy of the transmittal letter forwarding the deed to the county clerk or register of deeds and mortgages for recording;

6. An affidavit by the claimant, signed by the person required to sign the claim and certified in accordance with N.J.A.C. 7:1J-1.6, stating the following:

i. The sale price of the subject property without closing adjustments;

ii. That neither the claimant nor any person not listed on the settlement statements has received any money or other compensation from any party in connection with the subject property, except as set forth on the settlement statements; and

iii. That the documents submitted pursuant to (a)1 through 5 above are true copies of the original documents executed and delivered in connection with the sale of the subject property; and

7. An affidavit by the claimant's realtor, stating the following:

i. That the realtor is a member of the multiple listing service, and listed the property for sale with the multiple listing service (unless the subject property is of a type not normally sold through a multiple listing service);

ii. The period of time the subject property was offered for sale, and the period of time the property was listed for sale with the multiple listing service;

iii. The initial listing price;

iv. All changes in the listing price, and the dates of such changes;

v. A record of all inquiries received from potential purchasers regarding the subject property, and of all showings or open houses held in the course of offering the subject property for sale, including the names and addresses of all persons who inquired about the subject property, were shown the subject property, or attended open houses at the subject property, and a description of the responses of these persons to the subject property; and

vi. A record of the amount and date of each offer made for the purchase of the subject property.

(b) A determination by the administrator that the claimant arrived at the sale price in good faith shall not preclude the administrator from determining that any other aspect of the sale of the subject property was not in good faith.

(c) The administrator may deny the claim or adjust the amount eligible for compensation, if based upon the evidence required under (a) above, the administrator determines that any aspects of the sale of the subject property was not in good faith.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).
• In (a), changed "within 10 days" to "within 60 days".

N.J. Admin. Code § 7:1J-4.6 Settlement based upon legal inability to sell the subject property

(a) If, solely as a result of the discharge, the claimant is legally unable to sell the subject property (for example, if a certificate of occupancy cannot be issued for the subject property as a result of the discharge, and the subject property is located in a municipality in which a certificate of occupancy is required for the sale), the administrator may, in his or her discretion, offer to settle the claimant's claim against the Fund in accordance with this section.

(b) If the administrator elects to settle a claim pursuant to this section, the administrator shall determine the amount of the claim eligible for compensation pursuant to N.J.A.C. 7:1J-4.4. An offer by the administrator to settle the claim shall be in such amount.

(c) The making, acceptance or rejection, and arbitration of such settlement offer pursuant to (b) above shall be in accordance with N.J.A.C. 7:1J-8 and 9.

(d) As a condition of the settlement of the claim pursuant to this section, the claimant shall cause all persons having an ownership interest in the subject property (including without limitation any dower or curtesy interest preserved pursuant to N.J.S.A. 3B:28-1) to execute, acknowledge and deliver to the Department a document, in recordable form, granting to the Fund a lien on the subject property securing repayment of the full amount of the settlement. The Department shall forward such document to the county clerk or register of deeds and mortgages of the county in which the subject property is located. Such document shall be prepared and recorded at the claimant's expense.

(e) The administrator shall execute, acknowledge and deliver to the claimant a discharge of the lien upon payment of the following amount (provided however, that if the payment amount calculated below is less than zero, the administrator shall execute, acknowledge and deliver the discharge of the lien upon the claimant's written request, without the payment of any money; and provided further, that if the payment amount calculated below exceeds the amount of the settlement, the administrator shall execute, acknowledge and deliver the discharge of the lien upon repayment of the settlement amount, plus interest at the rate for post-judgment interest established in the Rules Governing the Courts of the State of New Jersey, as such rate is in effect as of the date of the settlement):

Payment amount = SP - (AV - S)

where:

1. SP equals the sale price of the subject property, as adjusted pursuant to the criteria listed in N.J.A.C. 7:1J-4.4 (c), if the administrator determines that the actual sale price does not accurately reflect the diminution in the value of the subject property resulting from the discharge;

2. AV equals the appraised value of the subject property, absent the effects of the discharge, as adjusted under N.J.A.C. 7:1J-4.4(c); and

3. S equals the amount of the settlement made pursuant to this section.

N.J. Admin. Code § 7:1J-4.7 Settlement when emergency relocation is necessary

If the administrator determines, in his or her discretion, that environmental conditions at the subject property which result from a discharge occurring after April 1, 1977 create a substantial risk of imminent harm to the health and safety of the occupants of the subject property, the administrator may suspend any or all of the requirements of N.J.A.C. 7:1J-4.2, 4.3, 4.4 and 4.5 and may immediately award compensation to enable the occupants of the property to relocate temporarily or permanently. Such an award may include all or part of the purchase price, relocation costs, and assumption of the costs of property encumbrances.

N.J. Admin. Code § 7:1J-4.8 Contract for sale of property entered into before filing of claim

(a) If a claimant has entered into a contract for the sale of property before filing a property value diminution claim with respect to such property, the administrator may, in his or her discretion, settle such a claim in accordance with this section.

(b) Claims made pursuant to this section shall be eligible for compensation only to the extent provided in N.J.A.C. 7:1J-4.1, and only if the subject property satisfies the eligibility requirements set forth in N.J.A.C. 7:1J-4.2.

(c) Subject to the limitation in N.J.A.C. 7:1J-4.1, the administrator shall determine the amount of the settlement offer pursuant to N.J.A.C. 7:1J-4.4.

(d) Together with the claim (or, if the claim is made before closing of the sale of the subject property, within 10 days after closing), the claimant shall submit to the Department all documents required pursuant to N.J.A.C. 7:1J-4.5; provided, however, that the Department may, in its discretion, refrain from requiring submission of the documents normally required under N.J.A.C. 7:1J-4.5(a)1 and 4.5(a)7.

N.J. Admin. Code § 7:1J-4.9 Suspension of claims

(a) The Department shall send notice of the requirements of this chapter to each claimant who filed a property value diminution claim before January 4, 1993. Within 60 days after receipt of such notice, each claimant shall notify the Department of his or her election to:

1. Pursue the claim;

2. Suspend the claim for the period provided in (c) below; or

3. Withdraw the claim.

(b) If a claimant fails to notify the Department of his or her election under (a) above, the claimant shall be deemed to have suspended the claim for the period provided in (c) below.

(c) All claims suspended pursuant to (a) or (b) above will remain in suspension until one of the following occurs:

1. The Department receives notice from the claimant, stating that the claimant desires to reinstate the claim; or

2. The claimant receives notice from the Department, stating that the remediation of the discharge has been completed to the satisfaction of the Department, and that the administrator is therefore denying the claim; provided, however, that if the Department has required as a condition of its satisfaction that a restriction running with the subject property be recorded with the applicable county clerk or register of deeds, the claimant may make a claim for diminution resulting from such restriction.

(d) At any time during the period of suspension under (c) above, a claimant may request reinstatement of the claim by notice to the Department.

(e) At the end of the suspension period provided in (c) above, the claim will be automatically reactivated, unless the claimant has previously withdrawn the claim.

(f) The administrator may, in his or her discretion, reactivate a claim suspended under N.J.A.C. 7:1J-2.4(b) upon the conclusion of litigation or arbitration between the claimant and any potentially responsible parties, which litigation or arbitration concerns such damages. For the purpose of this subsection, litigation or arbitration shall be deemed to have concluded upon the occurrence of any of the following: a complete settlement of the litigation or arbitration; or the entry of a certification, judgment or order completely resolving the litigation or arbitration, followed by the expiration of time allotted to appeal or otherwise challenge such certification, judgment or order.

(g) Upon reactivation of a suspended claim:

1. The administrator shall confirm the reactivation by written notice to the claimant;

2. The claim will be processed in accordance with this chapter; and

Within 30 days after receiving notice of the reactivation, the claimant shall list the subject property for sale with one or more licensed brokers who are members of a multiple listing service (or its commercial equivalent, for claims involving commercial property or other properties not normally offered for sale through a multiple listing service).

(h) Upon the claimant's second suspension of the claim, the administrator shall dismiss the claim, without prejudice. If the claimant subsequently files a new claim for the same damages contained in the original dismissed claim, the new claim will be deemed to have been filed as of the date of filing of the original dismissed claim.

Subchapter 5 EMERGENCY RESPONSE CLAIMS BY LOCAL UNITS

N.J. Admin. Code § 7:1J-5.1 Eligibility of emergency response claims for compensation

Emergency response claims are eligible for compensation from the Fund in accordance with the requirements of this chapter, to the extent permitted under this subchapter.

N.J. Admin. Code § 7:1J-5.2 Procedure for making emergency response claim

(a) Emergency response claims shall be subject to the claims procedure requirements of N.J.A.C. 7:1J-1, 2 and 6.

(b) In addition to the information and documents required to be submitted under N.J.A.C. 7:1J-6.3(a), a claimant making an emergency response claim shall submit the following:

1. An affidavit by the claimant, signed by the person required to sign the claim and certified in accordance with N.J.A.C. 7:1J-1.6, stating that the claimant obtained the approval of the Department before taking the emergency response action which is the subject of the claim, identifying the Department employee from whom the approval was obtained, stating the date of the approval, and the form in which the approval was transmitted to the claimant (for example, by telephone, mail, or facsimile transmission);

2. Reports by the police department and fire department concerning the emergency response action which is the subject of the claim, if such reports have been prepared;

3. Reports by the local hazardous materials unit and the local health department concerning the emergency response action which is the subject of the claim, if such reports have been prepared;

4. Documentation of the time spent by the claimant's personnel, personnel of other local units, and personnel acting at the request of the claimant or other local units, in connection with the emergency response action which is the subject of the claim; and

5. Receipts or other evidence of payment of costs incurred in the emergency response action which is the subject of the claim.

N.J. Admin. Code § 7:1J-5.3 Processing of emergency response claims

(a) Within 10 days after an emergency response claim is filed, the Department shall notify the claimant whether the claim is complete. If the claim is incomplete, the Department shall list in the notice the information necessary to make the claim complete, and specify in the notice the date by which the necessary information is to be submitted. The administrator may administratively close the claim under N.J.A.C. 7:1J-2.8 for failure to submit the necessary information in the allotted time.

(b) The administrator shall approve or deny an emergency response claim, without regard to the requirements of N.J.A.C. 7:1J-7, 8 and 9, within 120 days after the filing of a completed claim, including all supportive information or documentation required under N.J.A.C. 7:1J-5.2, (a) above, and 7:1J-6.

(c) If the administrator fails to approve (in whole or in part) or deny the emergency response claim within the 120 days allotted under (b) above, all costs in the claim shall be deemed approved.

(d) If the administrator denies the emergency response claim or approves only part of the costs claimed, the claimant shall not be precluded from seeking recovery of the costs denied by the administrator under any other provision of statutory law or in accordance with any remedies available under common law.

N.J. Admin. Code § 7:1J-5.4 Notice to potentially responsible parties

If the Department determines that a person is a potentially responsible party in connection with a discharge or threatened discharge which is the subject of an emergency response claim, the Department shall provide such person with written notice of the nature of the claim and the identity of the claimant.

N.J. Admin. Code § 7:1J-5.5 Eligible costs

Only those costs determined by the Department to be necessary and reasonable additional and extraordinary costs incurred by a local unit shall be compensable from the Fund.

History

• New Rule, R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).

Subchapter 6 CLAIMS PROCEDURES

N.J. Admin. Code § 7:1J-6.1 Time for filing of claims

Claimants shall submit any claims to the Department not later than one year after the date of discovery. With regard to claims filed by government entities, for damages resulting from contamination to private potable wells other than the claimant's own well(s), the date of discovery of damages is when the government entity agrees by vote, ordinance, resolution or other binding commitment, whichever occurs first, to restore, repair or replace the contaminated potable wells in question. With regard to property value diminution claims under N.J.A.C. 7:1J-4, the date of discovery of damages is the date when property is sold, unless the requirements of N.J.A.C. 7:1J-4.6 or 4.7 apply. If a claimant fails to submit a claim to the Department within such one-year period, the claimant shall be deemed to have waived such claim. Such waiver is with prejudice and shall bar all recourse by the claimant against the Fund for any damages arising out of or related to the discharge or threatened discharge.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).
• Added a second sentence.
• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 New Jersey Register 4157(a), 31 New Jersey Register 763(a).
• Inserted a new second sentence.

N.J. Admin. Code § 7:1J-6.2 Submission of claim

(a) For the purposes of determining whether a claim has been timely filed pursuant to N.J.A.C. 7:1J-6.1, the following shall apply:

1. If the claimant submits the claim by United States mail, the claim will be deemed filed as of the date of mailing by the claimant.

2. If the claimant submits the claim via another means of delivery, the claim will be deemed filed as of the date of receipt by the Department.

N.J. Admin. Code § 7:1J-6.3 Contents of claim

(a) Claims shall be typewritten or written legibly in ink, and shall contain the following information:

1. The name of the claimant;

2. The street address of the claimant;

3. The mailing address of the claimant;

4. The telephone number of the claimant during normal daytime business hours;

5. The name, mailing address, telephone number, and relationship to the claimant of any person designated to receive communications from the Department pursuant to N.J.A.C. 7:1J-6.7;

6. Whether the claimant is an individual, general partnership, limited partnership, corporation, local government entity, Federal government entity, or state government entity;

7. A statement that the claimant claims to have actually incurred damages, as such term is defined in N.J.A.C. 7:1J-1.4, that the claimant has not received compensation from any other source for such damages, and that the claimant is not a potentially responsible party in connection with the discharge which is the subject of the claim. Such statement need not be specific about the amount or the nature of such damages;

8. If the claim is for property value diminution, all documents required by N.J.A.C. 7:1J-4.5 to be submitted with the claim, and a statement that the claimant has contracted to sell or has sold the subject property;

9. A statement that the claimant cannot benefit from a covenant not to sue pursuant to N.J.S.A. 58:10B-13.1 or 13.2 for the subject property and why;

10. A statement that the damages being claimed are not the proximate result of additional remediation to remove an institutional control at the subject property; and

11. A statement that the claimant is the purchaser of a subject property for which a final remediation document has been issued for the entire property or any part thereof, and that all of the following apply:

i. The remediation which is the subject of the final remediation document involved the use of an institutional control and not an engineering control;

ii. The claimant is a person who qualifies to be relieved from liability pursuant to N.J.S.A. 58:10-23.11g(d) or (f) for the contamination at the subject property and why; and

iii. The Department has ordered the claimant to remediate the contamination.

(b) The claimant shall submit to the Department any of the following types of information requested by the Department:

1. The location of the property from which the claimant believes the discharge to have emanated or at which the threatened discharge occurred, including the name of the site, the street address, the municipality, and the county;

2. With respect to all persons whom the claimant believes to be responsible for the discharge or threatened discharge:

i. The name and address of each such person;

ii. If known to the claimant, whether each such person is an individual, general partnership, limited partnership, corporation or government entity;

iii. Whether any such person has admitted responsibility for the discharge or threatened discharge from which the claim arose, or liability for the amount of damages for which the claim is being made; and

iv. If any such person has admitted responsibility or liability pursuant to (b)iii above, the names of such persons and the nature of such admissions;

3. With respect to a claim involving damage to personal property:

i. The date or dates on which the damage occurred;

ii. The location of the personal property at the time the damage occurred;

iii. A description of the personal property which was damaged;

iv. A description of the damage;

v. The original cost paid by the claimant for the damaged personal property;

vi. The date the claimant acquired the damaged personal property;

vii. Evidence of the claimant's ownership of the damaged personal property;

viii. An estimate of the cost of repairing the damage to the personal property, and an estimate of the value of the damaged personal property as of the time of the damage;

ix. The name, address and qualifications of any persons who prepared the estimates required by (b)3viii above; and

x. The location at which the administrator or his designee can inspect the damaged personal property;

4. A description of any damage to real property located thereon, including:

i. The date on which the damage occurred;

ii. The precise location of the damaged real property, including the street address, the tax lot and block, the municipality, and the county;

iii. A description of the predominant use of the damaged real property;

iv. A detailed description of the damage to the real property, including whether the damages include costs associated with installing, maintaining, monitoring or removing engineering or institutional controls;

v. An estimate of the cost of remediating the damage, and the name, address and qualifications of the person making the estimate; and

vi. A description of the claimant's interest in the damaged real property; and documents evidencing such interest. Documents evidencing fee title to the damaged real property shall include an affidavit of title executed by the claimant, together with either a copy of the recorded deed conveying title to the claimant, or an owner's title insurance policy insuring the claimant's interest in the property. Documents evidencing a leasehold interest in the property shall include a copy of the lease for the property, together with an affidavit of the claimant stating that the lease is in full force and effect;

5. A detailed description of the facts known to the claimant which support the claim, including without limitation the following:

i. The facts which lead the claimant to believe that the discharge caused the damages suffered by the claimant; and

ii. The facts which lead the claimant to believe that a person is a potentially responsible party;

6. The names and addresses of any witnesses known to the claimant who may have knowledge concerning the discharge, threatened discharge, or damage;

7. The names of any public agencies (including without limitation any local or state police or any other local, state, interstate or federal agencies) who have investigated the discharge or threatened discharge, and, if known to the claimant, the names of the persons who conducted the investigations on behalf of such agencies;

8. If any of the damaged real or personal property or any of the asserted lost income or tax revenue may be covered by any insurance policy or policies, or other financial agreement or instrument under which compensation may be available, the following information:

i. The name and address of the insurance carrier which issued the policy, or issuer of the other financial agreement or instrument;

ii. The policy number or other applicable reference number;

iii. A copy of the certificate of insurance or other financial agreement or instrument; and

iv. Copies of any correspondence between the insurance carrier or issuer of the other financial agreement or instrument and the claimant or the claimant's representatives concerning the discharge or threatened discharge;

9. The names and addresses of any persons other than the Fund (including without limitation insurance companies) against whom the claimant has asserted a claim;

10. Whether the claimant has received or agreed to receive any compensation from any person in connection with the discharge or threatened discharge, and the details of any such compensation or agreement to receive compensation;

11. A description of any action taken to repair, restore or replace damaged real property, including without limitation the following:

i. The name and address of the person who has taken such action; and

ii. The cost of such action;

12. If the claimant asserts damages which include a loss of income, the claim shall include the following information:

i. The total amount of the claimed loss of income;

ii. The period of time during which the claimant asserts that the loss of income has occurred;

iii. If the claimant asserts that the loss of income has occurred over a period exceeding 12 months, a breakdown of the loss of income by three-month periods, with the first such period commencing on the date of discovery;

iv. A detailed description of the method employed by the claimant in calculating the claimed loss of income;

v. A statement of whether all income, sales and other accounting and financial information supporting the claim is available for inspection, copying and audit by the Department;

vi. If any of the information described in (b)12v above is not available for inspection, copying and audit, an explanation of why such information is unavailable for such purposes;

vii. With respect to any of the information described in (b)12v above which is available for inspection, copying and audit, a description of where and when the Department can obtain access to such information; and

viii. If any of the information described in (b)12v above has been audited, certified or reviewed by a certified public accountant, the name, address, and telephone number of such accountant, and the date of such audit, certification or review. If such information has been audited, the claimant shall attach copies of all audited statements and of the auditors' reports;

13. If the claimant asserts damages which include a loss of tax revenue, the claim shall include the following information:

i. The total amount of the claimed loss of tax revenue;

ii. The period of time during which the claimant asserts that the loss of tax revenue has occurred;

iii. A detailed description of the method employed by the claimant in calculating the claimed loss of tax revenue;

iv. A statement of whether all financial information supporting the claim is available for inspection, copying and audit by the Department;

v. If any of the information described in (b)13iv above is not available for inspection, copying and audit, an explanation of why such information is unavailable for such purposes;

vi. With respect to the information described in (b)13iv above which is available for inspection, copying and audit, a description of where and when the Department can obtain access to such information;

vii. If any of the information described in (b)13iv above has been audited, certified or reviewed by a certified public accountant, the name, address, and telephone number of such accountant, and the date of such audit, certification or review. If such information has been audited, the claimant shall attach copies of all audited statements and of the auditors' reports;

14. If the claimant is a limited partnership, the names and addresses of all general partners;

15. If the claimant is a general partnership, the names and addresses of all partners;

16. If the claimant is a corporation, the names and addresses of all directors and of all officers;

17. Any other information which the claimant believes to be relevant to the claim; and

18. Any other information which the Department deems necessary to process the claim, including, but not limited to, the following:

i. Whether there is a final remediation document concerning the subject property or a portion thereof, and whether the remediation at the subject property involved an institutional control and/or engineering control;

ii. Whether a covenant not to sue exists pursuant to N.J.S.A. 58:10B-13.1 or 13.2 concerning the subject property or a portion of the property; and

iii. Whether the claimant has applied for financial assistance or a grant from the Hazardous Discharge Site Remediation Fund established pursuant to N.J.S.A. 58:10B-4 or the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund, N.J.S.A. 58:10A-37.3.

(c) Any documents supporting the claimant's assertion of costs incurred in ameliorating damage resulting from a discharge shall be presented as follows:

1. The claimant shall submit a compilation of all such costs, stating the aggregate amount of the costs incurred; and

2. The claimant shall submit a breakdown of the aggregate costs incurred, stating which portion of the aggregate cost is attributable to ameliorating damage resulting from the discharge, and which portion is not.

(d) The claimant shall submit all bills, invoices, receipts and other documentation in an orderly fashion, accompanied by an index and/or a summary if the Department determines that an index or summary would assist in the organized and expeditious processing of the claim.

(e) The administrator may administratively close the claim pursuant to N.J.A.C. 7:1J-2.8 for failure to provide information under this section.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Deleted (a)8 and recodified (a)9 as (a)8.
• Amended by R.1999 d.91, effective 3/15/1999.
• See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
• In (a), added 9 through 11; and in (b), rewrote 4iv and 18.
• Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• In (a)9, substituted "pursuant to N.J.S.A. 58:10B-13.1 or 58:10C-31" for "if one has been issued by the Department"; in the introductory paragraph of (a)11, substituted "a final remediation document has been issued" for "the Department issued a No Further Action letter"; in (a)11i, substituted "final remediation document" for "No Further Action letter"; in (b)18i, substituted "there is a final remediation document" for "the Department ever issued a No Further Action letter"; and in (b)18ii, deleted "the Department issued" following "Whether" and inserted "exists" and "or 58:10C-31".
• Administrative correction.
• See: 42 N.J.R. 778(a).
• Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

N.J. Admin. Code § 7:1J-6.4 Amendment of claim

A claimant may amend a claim, or a response to the Department's request for information, with respect to the nature or extent of the damages, the cause of the damages, the amount of the claim, or any other information relevant to the claim, until the occurrence of the earliest of the following: the approval of the claim by the administrator; the denial of the claim by the administrator; or the agreement to a settlement among a claimant and one or more potentially responsible parties.

N.J. Admin. Code § 7:1J-6.5 Consent to inspection

(a) Submission of a claim shall constitute consent by the claimant to the following:

1. The inspection of the damaged real and personal property by the administrator, the Department, a Board of Arbitration convened by the administrator pursuant to N.J.A.C. 7:1J-9.1 (Board) and other persons designated by the administrator, the Department or the Board;

2. For all information submitted pursuant to N.J.A.C. 7:1J-6.3(b)12, 13, 14 or 15, the inspection, copying and audit of such information by the Department, the Board, and other persons designated by the administrator, the Department or the Board; and

3. The entry by the administrator, the Department, the Board, and other persons designated by the administrator or by the Board, onto any property to which the claimant has the right to grant access, or to which the claimant has the right to compel another person to grant access to perform remediation activities. Any cost which the claimant incurs in compelling such access shall be borne solely by the claimant.

History

• Amended by R.1998 d.67, effective 1/20/1998.
• See: 29 New Jersey Register 4365(a), 29 New Jersey Register 4594(a), 30 New Jersey Register 336(b).

N.J. Admin. Code § 7:1J-6.6 Notice of Intent to Deny; Denial

(a) The administrator shall deny a claim which, on its face, appears to be ineligible for compensation from the Fund.

(b) The administrator may issue a Notice of Intent to Deny (NOI) with respect to any claim which, on its face, does not contain information sufficient to support a determination that the claim is eligible for compensation from the Fund. The administrator shall send the claimant the NOI by certified mail, return receipt requested.

(c) The claimant may contest the NOI by submitting to the Department additional evidence in support of the claim, and evidence that any material fact set forth in the NOI is incorrect. The claimant shall submit such evidence within 30 days after the date on which the claimant received the NOI; provided however, that if the claimant has refused delivery of the NOI, the claimant shall submit such evidence within 30 days after the date the administrator mailed the NOI.

(d) If, after reviewing the evidence submitted pursuant to (c) above, the administrator determines that the claim does not clearly fail to satisfy the requirements for eligibility for compensation from the Fund, the administrator shall withdraw the NOI and process the claim in accordance with this chapter.

(e) The administrator shall deny the claim after the expiration of the 30-day period allotted under (c) above, if:

1. The claimant fails to submit any evidence to the Department within the 30-day period; or

2. After reviewing the evidence submitted pursuant to (c) above, the administrator determines that the claim clearly fails to satisfy the requirements for eligibility for compensation from the Fund.

(f) If the administrator denies the claim pursuant to (a) or (e) above, the administrator shall prepare a written statement setting forth the denial and the reasons therefor. The administrator shall send the claimant a copy of the statement by certified mail, return receipt requested.

(g) A claimant may request that a denial of a claim be arbitrated under N.J.A.C. 7:1J-9 if the denial was based solely upon the validity of the claim, and not upon other matters including, without limitation, untimely filing of the claim as shown on the face of the claim. The claimant shall make the request in writing within 20 days after receiving the administrator's written statement under (f) above; provided however, that if the claimant refuses delivery of the administrator's written statement, the claimant shall make the request for arbitration within 20 days after the date the administrator mailed the written statement. Failure to request arbitration before the expiration of such 20-day period shall operate as a waiver of any right to have the claim submitted to arbitration.

(h) A request for arbitration under (g) above shall contain the following information:

1. A denial of each fact disputed by the claimant which the administrator has asserted in the denial of the claim. The claimant's denial shall fairly meet the substance of the disputed facts, and shall contain assertions of the facts as the claimant believes them to be;

2. If the claimant asserts that, based upon the facts asserted in the administrator's denial of the claim, the administrator's denial is improper as a matter of law, a specific explanation of the legal basis for that assertion;

3. Copies of written documents which the claimant is relying upon to support the request, provided however, that if the claimant has previously submitted such documents to the Department, a specific reference to such documents will be sufficient;

4. An estimate of the time required for the hearing; and

5. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(i) If the claimant does not submit the information required under (h) above within the time allotted under (g) above, the administrator shall deny the request. If the claimant fails to include all of the information required under (h) above, the administrator may deny the request.

(j) The administrator may require that the claimant submit additional information beyond that required under (h) above, if the administrator determines that such information is necessary to provide the administrator, the Department or the Board with adequate notice of the specific factual or legal bases for the claimant's objections to the denial.

N.J. Admin. Code § 7:1J-6.7 Communication with claimant or representative

The Department will direct all communications in connection with the claim to the person who signed the claim, unless the claimant submits to the Department a written statement, signed by the person required to sign the claim, designating a representative to receive communications from the Department.

N.J. Admin. Code § 7:1J-6.8 Relaxation of procedural requirements

(a) Except as provided by (b) below, the Department may relax any of the procedural requirements of this chapter if the administrator determines that strict adherence to such requirements would result in unfairness or injustice.

(b) Notwithstanding (a) above, the Department shall not relax procedural requirements of this chapter if such requirements are imposed by the Act, by other applicable State or Federal statutes, or by applicable decision, order or decree of a court of competent jurisdiction.

N.J. Admin. Code § 7:1J-6.9 Reserved

History

• New Rule, R.1998 d.67, effective 1/20/1998.
• See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
• Special repeal, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
• See: 41 N.J.R. 4467(a).
• Section was "Remediation of discharge which is subject of claim".
• Readoption of special repeal, R.2011 d.251, effective 9/8/2011.
• See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
• Provisions of R.2009 d.361 readopted without change.

Subchapter 7 SETTLEMENT OF CLAIMS BETWEEN CLAIMANT AND POTENTIALLY RESPONSIBLE PARTIES

N.J. Admin. Code § 7:1J-7.1 Notice of claim to potentially responsible party

(a) If the administrator determines that a person is a potentially responsible party in connection with a discharge which is the subject of a claim, the administrator shall provide such person with written notice of the claim.

(b) The written notice provided under (a) above shall state the following:

1. The nature of the claim;

2. The identity of the claimant;

3. The time period established for settlement negotiations under N.J.A.C. 7:1J-7.2; and

4. The right to contest the validity or amount of the claim by requesting arbitration under N.J.A.C. 7:1J-8.2(a).

N.J. Admin. Code § 7:1J-7.2 Settlement negotiations

(a) If the administrator determines that one or more persons are potentially responsible parties in connection with a discharge which is the subject of a claim, the administrator shall establish a time period for settlement negotiations between all potentially responsible parties and the claimant. Such time period shall be no longer than 60 days, commencing as of the date set forth in the written notice under N.J.A.C. 7:1J-7.1, unless the administrator, the claimant and all potentially responsible parties agree upon a longer period. During this settlement negotiation period, all parties shall negotiate in good faith in attempt to resolve the subject claim. Such settlement negotiation period may be extended upon the agreement of the administrator, the claimant and all potentially responsible parties.

(b) The administrator may arrange for the assistance of a neutral third party to attempt to promote and arrange a settlement between the claimant and the potentially responsible parties.

N.J. Admin. Code § 7:1J-7.3 Effect of settlement between claimant and potentially responsible party

(a) If the source of the discharge which is the subject of the claim is determined, and one or more potentially responsible parties concede liability, the claimant and such potentially responsible parties may agree to a settlement which shall be final and binding upon the parties and which will waive all recourse by that claimant against the Fund in connection with the discharge which is the subject of the claim. Such waiver shall be effective regardless of any communications or understanding between or among the claimant, potentially responsible parties, and/or the administrator or the Department.

(b) If the source of the discharge which is the subject of the claim has not been determined, or if no potentially responsible party has conceded liability, the claimant and such potentially responsible parties may nonetheless agree to a settlement. Such settlement shall operate as a waiver by that claimant of all recourse against the Fund in connection with the discharge which is the subject of the claim, if the terms of the settlement in any way prejudice the subrogation or assignment rights of the Fund, or in any way impair the Fund's ability to obtain cost recovery. Such waiver shall be effective regardless of any communications or understanding between or among the claimant, potentially responsible parties, and/or the administrator or the Department.

(c) Notwithstanding the waiver under (a) or (b) above, if the settling potentially responsible party is or becomes insolvent or otherwise unable to perform its obligations under the settlement, the administrator may, in its discretion, allow the claimant to reinstate the claim against the Fund. If the claim is reinstated, the Fund shall not be bound by any aspect of the settlement with the potentially responsible party.

Subchapter 8 SETTLEMENT OF CLAIMS BETWEEN CLAIMANT AND FUND

N.J. Admin. Code § 7:1J-8.1 Request for payment upon failure to identify or settle with potentially responsible party

(a) A claimant may request payment of a claim from the Fund, if:

1. Based upon the information supplied by the claimant and other information obtained by the Department, the administrator has determined that he or she cannot identify any potentially responsible parties for the discharge from which the claim arose; or

2. The claimant has made good faith efforts to enter into a settlement with one or more potentially responsible parties, but has not entered into any such settlement within the time allotted under N.J.A.C. 7:1J-7.2.

(b) Upon receipt of a request under (a) above for payment of a claim from the Fund, the administrator shall provide written notice of the request to any potentially responsible parties who have been designated at or before the time of such claim.

N.J. Admin. Code § 7:1J-8.2 Contest of validity or amount of claim

(a) Any potentially responsible party may contest the amount or validity of the claim by requesting that the administrator submit the claim to arbitration. If a person receiving notice of the claim under N.J.A.C. 7:1J-7.1 has not delivered a request for arbitration within 20 days after the date of delivery of the notice of the claim (or, if such person has refused delivery of the notice, 20 days after the date of mailing of the notice), such person shall be deemed to have waived any right to have the claim submitted to arbitration.

(b) The administrator may contest the amount or validity of the claim by submitting the claim to arbitration.

(c) Any other person may contest the amount or validity of the claim by requesting that the administrator submit the claim to arbitration. If the person seeking to contest the claim has not delivered a request for arbitration within 20 days after receiving actual notice of the claim such person shall be deemed to have waived any right to have the claim submitted to arbitration.

(d) Upon receipt of a request for arbitration under (a) or (c) above, the administrator shall provide the person requesting arbitration with a copy of all information submitted to the administrator under N.J.A.C. 7:1J-6.3(a) and (b). Within 20 days after receipt of such information, the person requesting arbitration shall submit the following information to the administrator in writing:

1. The name, address and telephone number of the person requesting arbitration, and such person's authorized representative;

2. A denial of each fact asserted in the information submitted under N.J.A.C. 7:1J-6.3(a) and (b) which the person requesting arbitration disputes. The denial shall fairly meet the substance of the disputed facts, and shall contain assertions of the facts as the person requesting arbitration believes them to be;

3. If the person requesting arbitration asserts that, based upon the facts asserted in the information submitted under N.J.A.C. 7:1J-6.3(a) and (b), the claim is invalid or the amount is unreasonable as a matter of law, a specific explanation of the legal basis for that assertion;

4. Copies of written documents which the person requesting arbitration is relying upon to support its assertions and the request;

5. An estimate of the time required for the hearing; and

6. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(e) If the person requesting arbitration does not submit the information required under (d) above within the time allotted under (d) above, the administrator shall deny the request. If the person requesting arbitration fails to include all of the information required under (d) above, the administrator may deny the request.

(f) The administrator may require that the person requesting arbitration submit additional information beyond that required under (d) above, if the administrator determines that such information is necessary to provide the administrator, the Department, the claimant or the Board with adequate notice of the specific factual or legal bases for the objections by the person requesting arbitration to the validity or amount of the claim.

N.J. Admin. Code § 7:1J-8.3 Settlement offer by the administrator

(a) The administrator, on behalf of the Fund, may make a written settlement offer to the claimant if:

1. The claim is eligible for compensation from the Fund;

2. The claimant has requested payment of the claim under N.J.A.C. 7:1J-8.1;

3. The Department has not received any requests for arbitration of the claim within 30 days after the date of delivery of the last notice under N.J.A.C. 7:1J-8.1(b) (or, if any potentially responsible party has refused delivery, within 30 days after the date of mailing of the notice, if such date is later than the date of delivery to other potentially responsible parties); and

4. The claimant has made good faith efforts to enter into a settlement with one or more potentially responsible parties, but has not entered into any such settlement within the time allotted under N.J.A.C. 7:1J-7.2.

(b) The administrator, on behalf of the Fund, shall make a written settlement offer to the claimant if the claim is eligible for compensation from the Fund, the claimant has requested payment of the claim under N.J.A.C. 7:1J-8.1, and the administrator determines that the source of the discharge is unknown or cannot be determined.

(c) If the administrator is not required to make a settlement offer under (b) above, has elected not to make a settlement offer under (a) above, and has not denied the claim pursuant to N.J.A.C. 7:1J-6.6(e), the administrator shall submit the claim to arbitration in accordance with N.J.A.C. 7:1J-9.

N.J. Admin. Code § 7:1J-8.4 Action on administrator$DQ$s settlement offer

(a) The claimant shall either accept or reject the settlement offer made pursuant to N.J.A.C. 7:1J-8.3 no later than 20 days after the date the claimant receives the settlement offer (or, if the claimant refuses delivery of the settlement offer, 20 days after the date of mailing of the settlement offer). The administrator may extend this 20-day period by written notice to the claimant.

(b) If the claimant accepts the administrator's settlement offer made pursuant to N.J.A.C. 7:1J-8.3, the claimant shall be deemed to have waived all further claims against the Fund arising in connection with the discharge which was the subject of the settled claim. Upon such acceptance, the administrator shall be subrogated to all rights of the claimant against all other persons arising in connection with the damages which were the subject of the settled claim.

(c) If the claimant rejects the settlement offer within the time allotted by (a) above, the administrator shall submit the claim to arbitration pursuant to N.J.A.C. 7:1J-9, unless the administrator and the claimant expressly agree otherwise in writing.

(d) If no acceptance or rejection of the offer is delivered to the administrator before the expiration of the 20-day period allotted by (a) above (as such period may be extended), the claimant shall be deemed to have rejected the offer, and the offer shall be deemed to have terminated.

Subchapter 9 BOARDS OF ARBITRATION

N.J. Admin. Code § 7:1J-9.1 Convening a board of arbitration

(a) The administrator shall convene a board of arbitration upon the occurrence of any of the following:

1. When a claimant contests in writing the denial of a claim issued by the administrator pursuant to N.J.A.C. 7:1J-6.6(e), and requests arbitration pursuant to N.J.A.C. 7:1J-6.6(g); provided, however, that arbitration of denial of a claim shall be granted only if the denial was based solely upon the lack of validity of the claim;

2. When a claimant rejects a settlement offer made by the administrator pursuant to N.J.A.C. 7:1J-8.4(c);

3. When any potentially responsible party contests the validity or amount of the claim under N.J.A.C. 7:1J-8.2(a), the administrator contests the validity or amount of the claim under N.J.A.C. 7:1J-8.2(b), or any other person contests the validity or amount of the claim under N.J.A.C. 7:1J-8.2(c); or

4. When a claimant has failed to agree upon a settlement with a potentially responsible party within the time allotted pursuant to N.J.A.C. 7:1J-7.2, and the administrator has elected not to make a settlement offer pursuant to N.J.A.C. 7:1J-8.3(a).

(b) The administrator shall deny a request for arbitration if the requesting party fails to submit all of the information required under N.J.A.C. 7:1J-8.2, within the time allotted under that section.

N.J. Admin. Code § 7:1J-9.2 Notice of arbitration

The administrator shall provide written notice of the arbitration to the claimant, to all potentially responsible parties identified as of the date of the notice, and to any other person who has contested the validity or amount of damage claims or cleanup and removal costs presented to the Fund for payment.

N.J. Admin. Code § 7:1J-9.3 Membership of Board

(a) In the administrator's discretion, the board of arbitration shall consist of either three individuals, or one individual.

(b) The arbitrator for a one-member board shall be selected by one of the following methods, in the administrator's discretion:

1. Selection by the administrator;

Selection by agreement of the claimant and any potentially responsible parties, with the consent of the administrator; or

3. Selection by the American Arbitration Association.

(c) Membership of a three-member board shall be as follows:

1. One member appointed by the potentially responsible party, provided however, that if the administrator has not identified a potentially responsible party for the discharge, the administrator shall request the American Arbitration Association to select the member who would otherwise be appointed by a potentially responsible party;

2. One member appointed by the claimant; and

3. One member appointed by the members listed in (c)1 and 2 above. This member shall serve as chairman of the board.

(d) The claimant and the potentially responsible party each shall make the appointments required by (c) above within 30 days after each such person has received notice that a board will be convened. If either the potentially responsible party or the claimant fails to appoint a member within the allotted 30-day period, the administrator shall request the American Arbitration Association to select that member, and said member and the other member shall select the neutral arbitrator; provided however, that if both the claimant and the potentially responsible party fail to appoint a member within the allotted 30-day period, the administrator shall request the American Arbitration Association to select both members, and said members shall select the neutral arbitrator. Within 30 days after the appointment of the second of the members selected pursuant to (c)1 and (c)2 above, such members shall make the appointment required by (c)3 above. If such members fail to appoint the third arbitrator within such time period, the administrator shall request the American Arbitration Association to select the neutral arbitrator.

(e) Before the appointment of any person appointed as arbitrator becomes effective, the appointee shall disclose to the administrator any circumstance likely to affect the arbitrator's impartiality, including without limitation any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with any of the parties or any of their representatives. Upon receipt of such information from the appointee, the administrator shall communicate the information to the parties and to the board. Upon receipt of such information from a source other than the appointee, the administrator shall communicate the information to the appointee, to the parties and to the board.

(f) The selection of an arbitrator by a potentially responsible party shall not be construed as an admission of liability by any such person.

(g) Before proceeding with the first hearing, each arbitrator shall take the following oath of office:

I hereby solemnly swear to fairly, impartially and faithfully execute my duties as an arbitrator in accordance with the Spill Compensation and Control Act, and all other applicable laws and regulations.

(h) The administrator may declare the position of an arbitrator to be vacant, if presented with sufficient proof to reasonably support the conclusion that a member of the board has become unable to perform the duties of the office. A substitute member shall be appointed in accordance with this section, unless the administrator and the parties consent to proceed without a substitute member.

N.J. Admin. Code § 7:1J-9.4 Jurisdiction over all claims related to discharge

One board may be convened to hear and determine all claims arising from or related to a common discharge.

N.J. Admin. Code § 7:1J-9.5 Class actions

The board may acknowledge a class of claimants, pursuant to and in accordance with N.J.S.A. 58:10-23.11p.

N.J. Admin. Code § 7:1J-9.6 Administrative conference, preliminary hearing, and mediation conference

(a) The board, in its discretion, may schedule an administrative conference with the board and the parties and/or their representatives to expedite the arbitration proceedings.

(b) The board, in its discretion, may schedule a preliminary hearing with the parties and/or their representatives and the board to specify the issues to be resolved, to stipulate to uncontested facts, and to consider any other matters that will expedite the arbitration proceedings. Consistent with the expedited nature of arbitration, at the preliminary hearing the board may establish:

1. The extent of the schedule for the production of relevant documents and other information;

2. The identification of any witnesses to be called;

3. A schedule for further hearings to resolve the dispute; and

4. Such other procedural requirements which the board deems necessary.

(c) With the consent of the parties, the board at any stage of the proceeding may arrange a mediation conference in order to facilitate settlement.

N.J. Admin. Code § 7:1J-9.7 Discovery

(a) The board shall have complete discretion regarding discovery, provided however, that the board shall exercise such discretion in light of the expedited nature of Spill Fund Arbitration as outlined in N.J.S.A. 58:10-23.11n.

(b) The board shall reduce any proposed discovery orders to writing which shall be presented to the parties. Any exceptions to the board's proposed discovery order shall be filed within seven days after receipt of the order.

(c) The board may authorize the use of telephone conferences with the parties and the board to raise, argue and resolve any disputes regarding discovery.

N.J. Admin. Code § 7:1J-9.8 Prehearing requirements

(a) At least 10 days before the commencement of the hearing, the parties shall have:

1. Met and prepared a stipulation of facts not in dispute, and provided it to the board;

2. Met and pre-marked a joint set of exhibits as to which neither authenticity nor relevance is disputed, and provided it to the board;

3. Met and resolved all questions of authenticity as to any evidence with respect to which relevance remains in dispute, and advised the board of such resolution;

4. Identified and advised the board of all evidentiary and procedural issues which must be resolved in limine; and

If required by the board, filed trial briefs with the board and served copies of the trial briefs upon all parties.

N.J. Admin. Code § 7:1J-9.9 Conduct of hearing

(a) The board shall set the date, time, and place for each hearing. The board shall mail to each party notice thereof at least 10 days in advance, unless the parties by mutual agreement waive such notice or modify the terms thereof. For good cause shown, the board may postpone any hearing upon the request of a party or upon the board's own initiative.

(b) Any party may be represented by counsel or other authorized representative. A party intending to be so represented shall notify the other party and the board of the name and address of the representative at least three days prior to the date set for the hearing at which the person is first to appear. When such a representative initiates an arbitration or responds for a party, notice is deemed to have been given.

(c) The board shall make arrangements to obtain a record, stenographic or otherwise, and the administrator shall bear the expense thereof.

(d) Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall pay the costs of the service.

(e) The arbitrator shall maintain the privacy of the hearings unless the Act or any other applicable law or regulation provides to the contrary. Any person having a direct interest in the arbitration is entitled to attend hearings. The arbitrator shall otherwise have the power to require the exclusion of any witness, other than a party or other essential person, during the testimony of any other witness. It shall be discretionary with the arbitrator to determine the propriety of the attendance of any other person.

(f) The parties shall have leave to present to the arbitrator such motions as the arbitrator deems appropriate for purposes of resolving procedural and substantive issues and evidentiary issues. The arbitrator may require oral argument upon such motions.

(g) A hearing shall be opened by the filing of the oath of the arbitrator, by the recording of the date, time, and place of the hearing, and the presence of the board, the parties, and their representatives, if any; and by the receipt by the arbitrator of the statement of the claim and the answering statement.

(h) Following the opening of the hearing, the board may ask for opening statements from the parties or from parties' counsel, clarifying the issues involved.

(i) After any opening statements, the claim shall be presented. If the board, in its discretion, so directs, the claimant shall appear and present his or her proofs. Any witness appearing for the purpose of substantiating the validity or amount of the claim shall then submit to questions and cross-examination by the board and by all other parties. The potentially responsible party or other party contesting the validity and amount of a damage claim shall then present its proofs and direct examination of its witnesses, who shall submit to questions and cross-examination by the board and by all other parties. In its discretion, the board may allow rebuttal testimony. The board may vary this procedure but shall afford full and equal opportunity to all parties for the presentation of any material and relevant evidence concerning a contest to the validity or amount of damage claims or damages presented to the Fund for payment. The requirements of N.J.A.C. 7:1J-2.3 shall apply to all proceedings under this subchapter.

(j) The arbitrator may receive in evidence exhibits offered by either party. The names and addresses of all witnesses and a description of the exhibits in the order received shall be made a part of the record.

(k) The order in which multiple claimants and multiple potentially responsible parties present their cases shall be determined by the board. The order in which contesting parties present their respective cases shall be determined by the board.

(l) Unless the Act or any other applicable law or regulation provides otherwise, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement. The arbitrator shall require the party who is present to submit such evidence as the arbitrator may require for the making of an award.

(m) The hearing shall be completed within one day; provided however, that the board may, for good cause shown, schedule one or more additional days of hearing, which shall be consecutive days if possible.

(n) Before closing the hearing, the board shall specifically inquire of the parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies or if satisfied that the record is complete, the board shall declare the hearing closed and the time of such closing shall be recorded. If post-hearing submissions (such as briefs or finding of facts and conclusions of law) are to be filed after the presentation of all proofs and witnesses in the hearing, the hearing shall be declared closed as of the final date set by the board for the receipt of such post-hearing submissions. If documents are to be filed with the board after the presentation of proofs and witnesses, and the date set for their receipt is later than that set for the receipt of briefs, the later date shall be deemed the date of closing of the hearing.

(o) The board may reopen the hearing on its own initiative, or upon application of a party, at any time before the award is made. If reopening the hearing would prevent the making of the award within the specific time mandated in N.J.A.C. 7:1J-9.16, in N.J.A.C. 7:1J-9.20, or in the Act, the matter may not be reopened unless the parties agree on an extension of time. When no specific date is fixed, the arbitrator may reopen the hearing and shall have 30 days from the closing of the reopened hearing within which to make an award.

(p) There shall be no oral communication between the parties and any member of the board, except at the hearing, unless the parties and the arbitrator agree otherwise. Any written communication from the parties to the board shall be directed to the board, the administrator, and to all of the parties.

(q) All pleadings, notices, motions, correspondence or any submissions whatsoever to the board shall be served upon all parties and upon the administrator.

N.J. Admin. Code § 7:1J-9.10 Consent to service of process

Each party shall be deemed to have consented to accept service of all papers, notices, process, or awards necessary or proper for the initiation or continuation of an arbitration under these rules, or for any court action in connection therewith. The entry of any award made under these rules shall be served on a party in accordance with N.J.A.C. 7:1J-1.7.

N.J. Admin. Code § 7:1J-9.11 Evidence

(a) The parties may offer evidence which is supportive of their claim or such evidence which is relevant and material relating to a contest to the validity or amount of damage claims or cleanup and removal costs presented to the Fund for payment and shall, to the fullest extent practicable, produce such evidence as the board may deem relevant to an understanding and determination of such issues or such a contest.

(b) The board shall be the judge of the relevance and materiality of the evidence offered. Strict conformity to the legal rules of evidence shall not be necessary; provided however, that the board shall respect all privileges recognized by the New Jersey Rules of Evidence.

(c) All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where any of the parties is absent in default or has waived the right to be present.

(d) Exhibits, when offered by any party, may be received in evidence by the board, and shall be retained in the board's custody until the board renders a decision. After the board renders its decision, the board shall transfer custody of all exhibits to the administrator.

(e) The board may receive and consider the evidence of witnesses by affidavit certified in accordance with N.J.A.C. 7:1J-1.6, giving it such weight as the board deems it to be entitled to after consideration of any objections made to its admission.

(f) If the parties agree or the board directs that documents or other evidence be submitted to the board after the hearing, the documents or other evidence shall be filed with the administrator for transmission to the board. All parties shall be afforded an opportunity to examine such documents or other evidence.

N.J. Admin. Code § 7:1J-9.12 Subpoenas; witnesses

(a) The board may order testimony under oath and may subpoena attendance and testimony of witnesses and the production of such documentary materials pertinent to the issues presented to the board for determination. The board may cross-examine and ask questions of any witness. All oaths and affirmations shall be made and taken before any of the persons designated in N.J.S.A. 41:2-1.

(b) The expenses of witnesses (including, without limitation, expert witnesses) for either side shall be paid by the party producing such witnesses. All other expenses of the arbitration, including required travel and other expenses of the board, and any witness and the cost of any proof produced at the direct request of the board, shall be borne by the Fund unless the parties agree otherwise or unless the board in the award assesses such expenses or any part thereof against any specified party or parties.

N.J. Admin. Code § 7:1J-9.13 Inspections and investigations by the Board

The board may conduct inspections or investigations of any real or personal property which is relevant to the claim. An arbitrator finding it necessary to make an inspection or investigation in connection with the arbitration shall advise the administrator and the parties. The board shall set the date and time and shall notify the administrator and the parties thereof. Any party may be present at such inspection or investigation. If one or all parties are not present at the inspection or investigation, the board shall make a verbal or written report to the parties and afford them an opportunity to comment.

N.J. Admin. Code § 7:1J-9.14 Submission of briefs

(a) At any time before or during the hearing, the board may direct the parties to submit briefs on such legal issues as the board deems necessary for final determination of the claim. All parties shall serve copies of such briefs on each arbitrator, on all parties, and on the administrator. The board shall determine when the briefs are to be filed and shall notify the parties and the administrator of the filing date. The failure of a party to file such a brief shall not operate to delay the proceedings or the rendering of a decision by the board within the time limits specified in this subchapter or in the Act.

(b) Within 10 days after the board has determined that the parties have no further proofs to offer or witnesses to be heard, the board may direct the parties to submit to the board proposed findings of fact and conclusions of law. The board may also require any party to prepare supplemental legal memoranda on any issue that the board deems appropriate.

(c) Any party desiring reconsideration of any of the rulings of the Board rendered under N.J.A.C. 7:1J-9.16 shall move within 10 days after receiving the determination of the Board.

N.J. Admin. Code § 7:1J-9.15 Default

Where there is only one known potentially responsible party, and that party fails to appear at the hearing without obtaining an adjournment thereof, and where neither the administrator nor other persons contest either the validity or amount of the claim presented to the Fund for payment, a decision may be made solely on the default of the potentially responsible party. In all other cases, a decision may not be made solely on the default of a party, and the board shall require the party who is present to submit such evidence as is deemed necessary to arbitrate the issues before the board, except that issues raised only by a defaulting party need not be addressed by the board, and the board's determination of all issues before it shall be binding as to the defaulting party.

N.J. Admin. Code § 7:1J-9.16 Decisions of the board; award; payment of claim

(a) All decisions of the board shall be in writing, with notification to all parties, and shall be rendered within 60 days after the last member of the board takes the oath of office under N.J.A.C. 7:1J-9.3(g), unless the parties otherwise agree in writing to an extension. If all parties agree to such an extension, the board shall render its decision within 20 days after the date for final post-hearing submissions determined under N.J.A.C. 7:1J-9.9(n).

(b) No sooner than 30 days after the determination of the board, nor more than 60 days thereafter, the board shall certify all claims settled or arbitrated to the administrator, who, in turn, shall certify the amount of the award and the name of the claimant to the Commissioner of the Department, who shall direct the administrator to pay the award from the Fund.

(c) The award shall be in writing, signed by a majority of the arbitrators and filed with the administrator. The award shall be executed in the manner required by law.

(d) Any member of the board who disagrees with the award shall file a dissent which shall be certified and delivered to the administrator with the majority award.

(e) The board may grant any remedy or relief that the board deems just and equitable and within the scope of the arbitration provision of the Act. The arbitrator has no authority or power whatsoever to adjudicate the liability of any potentially responsible party for a discharge or threatened discharge; nonetheless, the board may deny any claim upon a finding that a particular claim is invalid for any reason or that the amount of the damage claim or cleanup and removal costs are not justified given the evidence presented to the board. The board has no authority to determine the scope of coverage or the applicability of any insurance policy pertaining to a potentially responsible party. This limitation upon the board's authority shall not be construed to limit the board's authority to determine whether the administrator's rights to subrogation or right to effectuate cost recovery have been impaired.

(f) If the parties settle their dispute during the course of the arbitration, the board may set forth the terms of the agreed settlement in a consent award.

(g) The administrator shall deliver the award in accordance with N.J.A.C. 7:1J-1.7.

(h) Determinations made by the board shall be final. Any action for judicial review shall be filed in the Appellate Division of the Superior Court within 30 days after the filing of the decision with the administrator pursuant to (b) above.

(i) All payments from the Fund pursuant to an award by the board shall be conditioned upon the administrator acquiring by subrogation all rights of the claimant to recovery of cleanup and removal costs and damages from any potentially responsible party; and provided further that the claimant has not received any compensation for said damages or cleanup and removal costs pursuant to any other State or Federal law. In any case in which a potentially responsible party seeks judicial review, reasonable attorney's fees and costs shall be awarded to the claimant if the decision of the board is affirmed.

N.J. Admin. Code § 7:1J-9.17 Waiver of hearing

(a) If the parties and the administrator agree in writing, signed by all parties and by the administrator, to waive the oral hearing, the board shall not hold a hearing.

(b) If the parties and the administrator waive the hearing pursuant to (a) above, the Board shall designate a date for submission of proofs. The Board shall notify all parties and the administrator of the date at least one week prior to the designated date. All parties shall submit all their respective proofs to the Board. The parties and the administrator shall have the opportunity to respond in writing to the proofs submitted by the other parties. The Board shall designate the time by which any such response must be filed.

(c) If the board thereafter requires additional documentation from any party, it shall notify the party of such requirement and of the date by which such material must be submitted to the board.

(d) The failure of any party to submit proofs, other documentation required by the board pursuant to (c) above, or permitted responses within the time specified by the board shall not operate to delay the rendering of a decision within the time limits specified in N.J.A.C. 7:1J-9.16, 9.20, or the Act. The board may, in its discretion, extend the time within which a party may submit information and responses so long as such extension will not operate to delay the rendering of a decision within the time limits specified in N.J.A.C. 7:1J-9.16, or the Act.

N.J. Admin. Code § 7:1J-9.18 Variance from procedural requirements

(a) Except as provided in (c) below, the board may relax any of the procedural requirements of this subchapter if the board determines that strict adherence to such requirements would result in unfairness or injustice.

(b) Nothing herein shall be deemed to preclude the parties from voluntarily agreeing to procedures more detailed than those found in this subchapter, provided that such supplemental agreements are approved by the board, and do not violate the limitations of (c) below. By way of illustration, such procedures may include guidelines for the presentation of expert testimony and the use and exchange of such testimony, or specific discovery procedures.

(c) Notwithstanding (a) and (b) above, the board shall not relax procedural requirements of this subchapter if such requirements are imposed by the Act, by other applicable State or Federal statutes, or by applicable decision, order or decree of a court of competent jurisdiction.

N.J. Admin. Code § 7:1J-9.19 Extensions of time

For good cause shown, the board may extend any period of time established by this subchapter, except the time for certifying the award. The board shall notify the parties of any extension.

N.J. Admin. Code § 7:1J-9.20 Expedited procedures

(a) The parties, the administrator and the board may unanimously agree to conduct the arbitration proceeding pursuant to the expedited procedures in this section. If the parties so agree, and if there is any conflict between this section and any other provision of this subchapter, this section shall control.

(b) Notwithstanding N.J.A.C. 7:1J-1.7, the parties shall accept all notices from the board by telephone. The board shall subsequently confirm such notices to the parties in writing, provided however, that the failure to provide written confirmation shall not invalidate the telephone notice.

(c) The board shall set the date, time and place of the hearing, and so notify the parties at least seven days before the scheduled hearing date.

(d) The hearing shall be completed within one day, unless the board, for good cause shown, schedules one or more additional hearing dates.

(e) Unless the parties agree otherwise, the board shall render its decision within 14 days after the date of the close of the hearing.

N.J. Admin. Code § 7:1J-9.21 Waiver of rules

Any party who proceeds with the arbitration after knowledge that any provision or requirement of this subchapter has not been complied with and who fails to state an objection thereto in writing shall be deemed to have waived the right to object.

N.J. Admin. Code § 7:1J-9.22 Interpretation and application of rules

The board shall interpret and apply this subchapter insofar as it relates to the board's powers and duties. When the board consists of more than one arbitrator and a difference arises among them concerning the meaning or application of these rules, the difference shall be decided by a majority vote. If no majority of the board agrees upon one resolution of the difference, the board shall refer the issue to a neutral party acceptable to the board, the administrator and the parties. If the board, the administrator and the parties cannot agree upon a neutral party, the administrator shall request that the American Arbitration Association apply its procedures to select the neutral party.

N.J. Admin. Code § 7:1J-9.23 Copies of papers for judicial proceedings

The board shall, upon the written request of a party, furnish to the party, at the party's expense, certified copies of any papers in the board's possession that may be required in judicial proceedings relating to the arbitration.

N.J. Admin. Code § 7:1J-9.24 Exculpation of arbitrators

No arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these rules.

Chapter 1K POLLUTION PREVENTION PROGRAM RULES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1K-1.1 Scope

This chapter constitutes the rules of the Department for the administration and implementation of the Pollution Prevention Program established by the Pollution Prevention Act, P.L. 1991, c.235, codified at N.J.S.A. 13:1D-35 et seq. and 34:5A-1 et seq. This chapter applies to the use and release of hazardous substances and the generation of hazardous substances as nonproduct output by industrial facilities and sets forth guidelines and procedures to be followed by priority industrial facilities in the development of Pollution Prevention Plans, Pollution Prevention Plan Summaries and Pollution Prevention Plan Progress Reports as required by the Act. This chapter also provides for the issuance of facility-wide permits to certain priority industrial facilities under the pilot program established by N.J.S.A. 13:1D-48.

N.J. Admin. Code § 7:1K-1.2 Purpose

(a) It is the purpose of this chapter to promote pollution prevention by:

Encouraging the reduction of:

i. The use of hazardous substances in industrial and manufacturing processes;

ii. The generation of hazardous substances as nonproduct output; and

iii. The multimedia environmental releases of hazardous substances; and

2. Developing a facility-level and process-level accounting system for identifying the use, generation, and release of hazardous substances so that industrial facilities can identify pollution prevention opportunities and implement pollution prevention techniques.

N.J. Admin. Code § 7:1K-1.3 Jurisdiction

(a) This chapter shall apply, to the extent statutorily permissible, to the following Department management actions affecting industrial facilities:

1. Permits, certificates, registrations, or any other relevant Departmental approvals issued to the owner or operator of the industrial facility pursuant to N.J.S.A. 13:1E-1 et seq., 58:10A-1 et seq., or 26:2C-1 et seq.

(b) The pollution prevention concepts and requirements contained in this chapter shall be incorporated, to the extent statutorily permissible, in the Department's policies, procedures and permits.

N.J. Admin. Code § 7:1K-1.4 Relationship of Community Right-to-Know Reporting to Pollution Prevention Reporting

The Department may combine the reporting elements of this chapter with those required for Community Right-to-Know reporting pursuant to N.J.S.A. 34:5A-1 et seq. in order to allow a priority industrial facility to submit a combined reporting form to satisfy the requirements of N.J.A.C. 7:1G and 7:1K.

N.J. Admin. Code § 7:1K-1.5 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Pollution Prevention Act, N.J.S.A. 13:1D-35 et seq.

"Assertedly confidential information" means information for which a claimant has filed a confidentiality claim in accordance with N.J.A.C. 7:1K-8.2, but for which the Department has not made a final confidentiality determination pursuant to N.J.A.C. 7:1K-9.5.

"Assistant Commissioner" means the Assistant Commissioner for Environmental Regulation or his or her designated representative.

"Base year" means the calendar year prior to the year of the submittal of an industrial facility's Pollution Prevention Plan Summary to the Department.

"Board" means the Pollution Prevention Advisory Board established by N.J.S.A. 13:1D-39.

"Claimant" means any person who submits a confidentiality claim under this chapter.

"Class confidentiality determination" means a confidentiality determination made by the Department under N.J.A.C. 7:1K-9.9, for a class of information.

"Commissioner" means the Commissioner of the Department of Environmental Protection or his or her designated representative.

"Confidential copy" means a record (or copy thereof) submitted to or obtained by the Department, containing information which the claimant asserts is confidential information.

"Confidential information" means information, including trade secret information, which the Department determines to have satisfied all of the following substantive criteria:

1. The claimant has asserted a confidentiality claim with respect to the information, in compliance with the procedures required by N.J.A.C. 7:1K-8.2, and such confidentiality claim has not expired by its terms, been waived or withdrawn;

2. The claimant has shown that disclosure of the information would be likely to cause substantial damage either to the claimant's competitive position or to national security;

3. The claimant has taken reasonable measures to protect the confidentiality of the information, and intends to continue to take such measures;

4. The information is not, and has not been, available or otherwise disclosed to other persons either by the claimant (except in a manner which protects the confidentiality of the information) or without the consent of the claimant (other than by subpoena or by discovery based on a showing of special need in a judicial proceeding, arbitration, or other proceeding in which the claimant was required to disclose the information to other persons, as long as the information has not been available to persons not involved in the proceeding);

5. The information is not contained in materials which are routinely available to the general public, including without limitation initial and final orders in contested case adjudications, press releases, copies of speeches, pamphlets and educational materials;

6. The claimant has not waived the confidentiality claim for the information; and

7. No law, regulation, administrative rule (including, without limitation, N.J.A.C. 7:1K-10 or any other administrative rule of the Department), or order by a court or other tribunal of competent jurisdiction specifically requires disclosure of the information or provides that the information is not confidential information.

"Confidentiality claim" or "claim" means, with respect to information that a person is required either to submit to the Department, or allow the Department to obtain, a written request by such person that the Department treat such information as confidential information.

"Confidentiality determination" means a determination by the Department that assertedly confidential information is or is not confidential information.

"Consume" means to change or alter the molecular structure of a hazardous substance within a production process.

"Contract" means an agreement between the Department and a contractor, for which the Department has determined that it is necessary for the contractor to have access to confidential information to enable the contractor to perform the duties required by such agreement.

"Contractor" means a person, other than an employee of the Department, who has entered into an agreement with the Department to perform services or to provide goods for the Department.

"Co-product" means one or more incidental result(s) of a production process that is not a primary product of the production process and that is sold in trade in the channels of commerce to the general public in the same form as it is produced, for any purpose except the purpose of energy recovery. A co-product is not considered nonproduct output. Increases in quantities of co-products do not count towards use reduction or nonproduct output reduction goals.

"Department" means the Department of Environmental Protection, its successors and assigns.

"Facility" means all buildings, equipment, structures, and other property that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person.

"Facility-wide permit" means a single permit issued by the Department to the owner or operator of a priority industrial facility incorporating the permits, certificates, registrations, or any other relevant Department approvals previously issued to the owner or operator of the priority industrial facility pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., and the appropriate provisions of the Pollution Prevention Plan prepared by the owner or operator of the priority industrial facility pursuant to N.J.S.A. 13:1D-41 and 42.

"Form DEQ-114" means the Release and Pollution Prevention Report (RPPR) form issued by the Department which is used to fulfill the Environmental Release and Pollution Prevention reporting requirements of the environmental survey, Part II, pursuant to N.J.S.A. 34:5A-1 et seq.

"Grace period" means a period of time afforded under the Grace Period Law, N.J.S.A. 13:1D-125 et seq., for a person to correct a minor violation in order to avoid imposition of a penalty that would otherwise be applicable for a violation.

"Hazardous substance" means any substance on the list established by the United States Environmental Protection Agency for reporting pursuant to 42 U.S.C. § 11023, and any other substance which the Department defines as a hazardous substance for the purposes of the Act pursuant to N.J.A.C. 7:1K-3.5.

"Hazardous waste" means any solid waste defined as hazardous waste by the Department pursuant to N.J.S.A. 13:1E-1 et seq.

"Industrial facility" means any facility having a North American Industry Classification System (NAICS) code listed in chapter Appendix D, incorporated herein by reference, dated and published in 2002 by the Executive Office of the President of the United States, Office of Management and Budget, ISBN 0-934213-87-9, NTIS PB2002-502024, subject to the specified exceptions and limitations, and which is subject to the regulatory requirements of the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., or the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq.

In-process recycling" means returning a hazardous substance to a production process using dedicated equipment that is directly connected to and physically integrated with a production process or production processes and is operated in a manner that reduces the generation of nonproduct output or the multi-media release of hazardous substances.

"Intermediate product" means one or more desired result(s) of a production process that is made into a product in a subsequent production process at the same industrial facility, without the need for pollution treatment prior to its being made into a product. An intermediate product is not considered nonproduct output.

"Manufacture" means to produce, prepare, import, or compound a hazardous substance.

"Multimedia release" means the release of a hazardous substance to any environmental medium, or any combination of media, including the air, water or land, and includes any release into workplaces.

"Nonproduct output" or "NPO" means all hazardous substances or hazardous wastes that are generated prior to storage, out-of-process recycling, treatment, control or disposal, and that are not intended for use as a product. Nonproduct output includes fugitive releases.

"Offense" means each individual violation of the Act or of any rule promulgated, or administrative order, operating certificate, registration requirement or permit issued pursuant thereto. Subsequent offenses are not conditioned upon a prior conviction, final order, or entry of judgment. In addition, a single administrative order and notice of civil administrative penalty assessment may relate to more than one offense.

"Office" means the Office of Pollution Prevention and Right to Know established in the Department pursuant to N.J.S.A. 13:1D-38.

"Operator" means any person in control of, or exercising responsibility for, the daily operation of an industrial facility or a priority industrial facility.

"Owner" means any person who owns an industrial facility or a priority industrial facility.

"Person" means any individual, partnership, company, corporation, society, firm, consortium, joint venture, or any commercial or other legal entity.

"Pilot facility" means a facility or designated area of a facility used for pilot-scale development of products or processes not primarily involved in the production of goods for commercial sale.

"Pollution prevention" means: changes in production technologies, raw materials or products, that result in the reduction of the demand for hazardous substances per unit of product manufactured and the creation of hazardous products or nonproduct outputs; or changes in the use of raw materials, products, or production technologies that result in the reduction of the input use of hazardous substances and the creation of hazardous by-products or destructive results; or on-site facility changes in production processes, products, or the use of substitute raw materials that result in the reduction of the amount of hazardous waste generated and disposed of on the land of hazardous substances discharged into the air or water per unit of product manufactured prior to treatment and that reduce or eliminate, without shifting, the risks that the use of hazardous substances at an industrial facility pose to employees, consumers, and the environment and human health. "Pollution prevention" includes, but is not limited to, raw material substitution, product reformulation, production process redesign or modification, in-process recycling, and improved operation and maintenance of production process equipment. "Pollution prevention" does not include any action or change entailing a substitution of one hazardous substance, product or nonproduct output for another that results in the creation of substantial new risk, and does not include treatment, increased pollution control, out-of-process recycling, or incineration.

"Pollution Prevention Assessment" means an assessment of potential pollution prevention opportunities for the use, generation and release of non-hazardous substances, prepared by an owner or operator of a priority industrial facility that is covered by an effective facility-wide permit issued by the Department, containing the same elements as those required for hazardous substances by N.J.A.C. 7:1K-4.3 and 4.5.

"Pollution Prevention Plan" means a plan required to be prepared by an industrial facility pursuant to N.J.S.A. 13:1D-41 and 42 and N.J.A.C. 7:1K-3 and 4.

"Pollution Prevention Plan Progress Report" or "Plan Progress Report" means a report required to be submitted annually to the Department by the owner or operator of an industrial facility pursuant to N.J.S.A. 13:1D-41 and 42 and N.J.A.C. 7:1K-3 and 6.

"Pollution Prevention Plan Summary" or "Plan Summary" means a summary of a Pollution Prevention Plan required to be prepared by an industrial facility and submitted to the Department pursuant to N.J.S.A. 13:1D-41 and 42 and N.J.A.C. 7:1K-3 and 5.

"Pollution prevention planning" means the preparation by a priority industrial facility of a Pollution Prevention Plan, Plan Summary, and Plan Progress Report pursuant to this chapter, and includes any reporting of information to the Department required by this chapter as part of the preparation or submittal of pollution prevention planning documents.

"Pollution Prevention Planning Guidance Document" means a document prepared by the Department pursuant to N.J.S.A. 13:1D-40(b), setting forth the administrative and regulatory requirements for preparing Pollution Prevention Plans, Pollution Prevention Plan Summaries, and Pollution Prevention Plan Progress Reports, and providing additional information which may be used by industrial facilities for pollution prevention planning.

"Preliminary public copy" means a copy of a record held by the Department, identical to the confidential copy except that any assertedly confidential information has been blacked out; provided, however, that if the record is not in a form in which confidential information can be concealed by blacking out, the "preliminary public copy" shall be a copy of such record from which such confidential information has been deleted, containing notations stating where deletions have been made.

"Priority industrial facility" means:

1. Any industrial facility required to prepare and submit a toxic chemical release form pursuant to 42 U.S.C. § 11023; or

2. Any other industrial facility designated by the Department as a priority industrial facility pursuant to the criteria and procedure at N.J.A.C. 7:1K-3.2.

"Product" means one or more desired result(s) of a production process that is used as a commodity in trade in the channels of commerce by the general public in the same form as it is produced. Products include intermediate products transferred to a separate industrial facility owned or operated by the same owner or operator.

"Production process" means a process, line, method, activity or technique, or a series or combination of processes, lines, methods or techniques used to produce a product or reach a planned result.

"Raw Material Substitution Certification" means a list of individual hazardous substances used in specific targeted production processes at a priority industrial facility, for which the owner or operator of the industrial facility has determined through preparation and completion of a Pollution Prevention Plan and has certified to the Department that it is not technically or economically feasible to reduce the input-use of the hazardous substance below current levels by replacing the hazardous substance with a different raw material in the specific production process.

"Record" means any document, writing, photograph, sound or magnetic recording, drawing, or other similar thing by which information has been preserved and from which information can be retrieved and copied.

"Requester" means a person who has made a request to the Department to inspect or copy records which the Department possesses or controls.

"Research and development laboratory" means a facility or a specially designated area of a facility used primarily for research, development, and testing activity, and not primarily involved in the production of goods for commercial sale, in which hazardous substances are used by, or under, the direct supervision of a technically qualified person.

"Source" means a point or location in a production process at which a nonproduct output is generated or released, provided, however, that similar, related or identical kinds of sources may be considered a single source for the purposes of the Act pursuant to the criteria at N.J.A.C. 7:1K-4.2.

"Substantiation" means information which a claimant submits to the Department in support of a confidentiality claim pursuant to N.J.A.C. 7:1K-9.3.

"Targeted production process" means any production process which significantly contributes to the use or release of hazardous substances or the generation of nonproduct output, as determined by the owner or operator of a priority industrial facility pursuant to criteria established by the Department at N.J.A.C. 7:1K-4.4.

"Targeted source" means any source which significantly contributes to the generation of nonproduct output, as determined by the owner or operator of a priority industrial facility pursuant to criteria established by the Department at N.J.A.C. 7:1K-4.4.

"TRI list" means the Toxic s Release Inventory (TRI) list established by the United States Environmental Protection Agency for reporting pursuant to 42 U.S.C. § 11023.

"Unit of product" means a unit used to measure the total quantity of product(s), co-product(s) and/or intermediate product(s) produced by a production process, and which is not changed by an industrial facility from year to year.

"U.S. EPA" means the United States Environmental Protection Agency.

"Violation" means a violation of any provision of the Act, or any rule or regulation, administrative order, or facility-wide permit adopted or issued pursuant to the Act.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 N.J.R. 1849(a), 26 N.J.R. 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• In "Form DEQ-114" substituted "Release and Pollution Prevention Report (RPPR)" for "reporting"; and inserted "Standard Industrial Classification (SIC)" and "U.S. EPA".
• Special amendment, R.2004 d.87, effective 1/28/2004 (to expire August 15, 2004).
• See: 36 N.J.R. 1233(a).
• Rewrote "Industrial facility"; deleted "Standard Industrial Classification (SIC)".
• Administrative correction.
• See: 36 N.J.R. 2762(b).
• Adopted concurrent amendment, R.2004 d.330, effective 7/29/2004.
• See: 36 N.J.R. 1233(a), 36 N.J.R. 4127(b).
• Provisions of R.2004 d.87 adopted without change.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• Added definition "Grace period" and substituted "Right to Know" for "Permit Coordination" in definition "Office".
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a)

N.J. Admin. Code § 7:1K-1.6 Construction

These rules shall be liberally construed to permit the Department to discharge its statutory functions under the Act.

N.J. Admin. Code § 7:1K-1.7 Severability

If any subchapter, section, subsection, paragraph, subparagraph, provision, clause or portion of this chapter or the application thereof to any person or circumstance is adjudged invalid or unconstitutional by a court of competent jurisdiction, the remainder of this chapter and the application thereof to other persons or circumstances shall not be affected thereby, and shall remain in full force and effect.

N.J. Admin. Code § 7:1K-1.8 Access to public information

Interested persons may obtain information on the pollution prevention program, copies of pollution prevention reporting forms, and copies of the Pollution Prevention Planning Guidance Document by contacting:

Bureau of Compliance Support and Pollution Prevention

Department of Environmental Protection

Mail Code 401-04B

PO Box 420

Trenton, New Jersey 08625-0420

(609) 777-0518, or

http://www.nj.gov/dep/enforcement/pp.html

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In contact information, substituted "Right to Know" for "Permit Coordination", changed the PO Box number from "423" to "443", changed the zip code from "08625-0423" to "08625-0443", and added the email address.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-1.9 Revisions to North American Industry Classification System Codes for purposes of the definition of "industrial facility"

In the event that the Executive Office of the President, Office of Management and Budget, publishes new or revised North American Industry Classification System (NAICS) codes modifying the 2002 list of NAICS codes on which the definition of "industrial facility" and chapter Appendix D is based, the Department shall modify the NAICS codes as necessary to ensure that, as required by N.J.S.A. 13:1D-139, the generally equivalent universe of industrial facilities continue to be regulated under this chapter. Specifically, the Department shall provide limitations and/or exceptions to the NAICS codes as required to maintain the regulated universe as of August 15, 2003. The Department shall publish in the New Jersey Register a notice of the new or revised NAICS code(s) and the corresponding administrative change(s) to Appendix D.

History

• Special New Rule, R.2004 d.87, effective 1/28/2004 (to expire August 15, 2004).
• See: 36 New Jersey Register 1233(a).
• Administrative correction.
• See: 36 New Jersey Register 2762(b).
• Adopted concurrent new rule, R.2004 d.330, effective 7/29/2004.
• See: 36 New Jersey Register 1233(a), 36 New Jersey Register 4127(b).

Subchapter 2 POLLUTION PREVENTION ADVISORY BOARD

N.J. Admin. Code § 7:1K-2.1 Pollution Prevention Advisory Board

(a) The Pollution Prevention Advisory Board shall advise the Department in matters related to the administration of the Act and shall monitor the expenditure of money in the Pollution Prevention Fund established by N.J.S.A. 13:1D-50.

(b) The appointment and membership of the Board shall be as provided at N.J.S.A. 13:1D-39. A majority of the membership of the Board shall constitute a quorum for the transaction of board business. Action may be taken and motions adopted by the Board at any meeting thereof by the affirmative vote of a majority of the members of the Board present and voting. Members of the Board shall serve without compensation but the Board may, within the limits of funds appropriated or otherwise made available to it for such purposes, reimburse its members for reasonable and necessary expenses incurred in the discharge of their official duties.

(c) The Board may:

1. Review any matters submitted to it by the Department concerning any aspect of the provisions or implementation of the Act and report its recommendations to the Department;

2. Conduct an ongoing review of the implementation of the Act and submit any recommendations for administrative or legislative changes it deems necessary to the Department;

3. Investigate techniques to develop standardized classifications of production processes employed by industrial facilities, and investigate the feasibility of utilizing such techniques in the development and implementation of Pollution Prevention Plans;

4. Advise the Department on the interpretation of information submitted in Pollution Prevention Plan Summaries and Pollution Prevention Plan Progress Reports and on the content of Pollution Prevention Plans, Plan Summaries, and Plan Progress Reports;

5. Review the scientific literature concerning the occupational, public health, and environmental risks presented by exposures to specific hazardous substances, evaluate scientific interpretations of these risks, and assess the risks of the discharge of these hazardous substances into different environmental media;

6. Review and evaluate the impact of reductions in the use or discharge of specific hazardous substances on employment levels;

7. Conduct periodic reviews of the criteria adopted by the Department for the preparation of Pollution Prevention Plans, Plan Summaries, and Plan Progress Reports and, if deemed necessary, make recommendations to the Department for administrative changes;

8. Study and evaluate the practicability and feasibility of achieving hazardous substance pollution prevention without reductions in employment levels through the use of substitute substances, alternative procedures or processes, or other means;

9. Conduct research, or hold public hearings concerning the continued use, production, manufacture, discharge, or disposal of any hazardous substance in the State and the threat that this use, production, manufacture, discharge, or disposal poses to human health or the environment, and, if warranted, make a written recommendation to the Governor and the Legislature concerning the prohibition of, or restrictions on, the continued use, production, manufacture, discharge, or disposal of the hazardous substance in the State, except that the Board shall not conduct research or hold public hearings concerning the siting of hazardous waste facilities; and

10. Review the expenditure by the Department of monies deposited in the Pollution Prevention Fund established pursuant to N.J.S.A. 13:1D-50.

Subchapter 3 POLLUTION PREVENTION PLANNING REQUIREMENTS

N.J. Admin. Code § 7:1K-3.1 Preparation and submission of pollution prevention planning documents by priority industrial facilities

(a) The owner or operator of a priority industrial facility required to prepare and submit a toxic chemical release form for calendar year 1993 pursuant to 42 U.S.C. § 11023 and having a North American Industry Classification System code, as designated by the Federal Office Management and Budget as listed in Table 3.1(a) of Appendix D, shall:

1. Prepare Parts IA and II of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) and 4.5 and submit a Pollution Prevention Plan Summary to the Department in accordance with N.J.A.C. 7:1K-5.1 on or before July 1, 1994;

2. Prepare Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by July 1, 1995;

3. Update Part IB of the Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-3.7 and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by each July 1 thereafter; and

4. Revise or modify the industrial facility's Pollution Prevention Plan or Plan Summary as required by N.J.A.C. 7:1K-3.6 and 3.8.

(b) The owner or operator of a priority industrial facility required to prepare and submit a toxic chemical release form for calendar year 1995 pursuant to 42 U.S.C. § 11023 and having a North American Industry Classification System code, as listed in Table 3.1(b) of Appendix D, shall:

Prepare Parts IA and II of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) and 4.5 and submit a Pollution Prevention Plan Summary to the Department in accordance with N.J.A.C. 7:1K-5.1 on or before July 1, 1996;

2. Prepare Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by July 1, 1997;

3. Update Part IB of the Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-3.7 and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by each July 1 thereafter; and

4. Revise or modify the industrial facility's Pollution Prevention Plan or Plan Summary as required by N.J.A.C. 7:1K-3.6 and 3.8.

(c) The owner or operator of a priority industrial facility required to prepare and submit a toxic chemical release form for calendar year 1999 pursuant to 42 U.S.C. § 11023 and having a North American Industry Classification System code, as designated by the Federal Office of Management and Budget, as listed in Table 3.1(c) of Appendix D of this chapter, shall:

1. Prepare Parts IA and II of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) and 4.5 and submit a Pollution Prevention Plan Summary to the Department in accordance with N.J.A.C. 7:1K-5.1 on or before July 1, 2000;

2. Prepare Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by July 1, 2001;

3. Update Part IB of the Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-3.7 and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by each July 1 thereafter; and

4. Revise or modify the industrial facility's Pollution Prevention Plan or Plan Summary as required by N.J.A.C. 7:1K-3.6 and 3.8.

(d) The owner or operator of an industrial facility that is not required to prepare and submit a toxic chemical release form pursuant to 42 U.S.C. § 11023, but which is designated as a priority industrial facility for pollution prevention planning purposes pursuant to N.J.A.C. 7:1K-3.2, shall:

1. Prepare Parts IA and II of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) and 4.5 and submit a Pollution Prevention Plan Summary to the Department in accordance with N.J.A.C. 7:1K-5.1 within 18 months of receipt of the Department's final directive designating the industrial facility as a priority industrial facility;

2. Prepare Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by July 1 of the year following the submittal of the industrial facility's first Pollution Prevention Plan Summary to the Department;

3. Update Part IB of the Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-3.7 and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by each July 1 thereafter; and

4. Revise or modify the industrial facility's Pollution Prevention Plan or Plan Summary as required by N.J.A.C. 7:1K-3.6 and 3.8.

(e) The owner or operator of a priority industrial facility who was not required to prepare and submit pollution prevention planning documents pursuant to (a) or (b) above, but who subsequently becomes subject to the filing of a toxic chemical release form pursuant to 42 U.S.C. § 11023, for example, by the U.S. EPA's addition of new hazardous substances or new North American Industry Classification System codes, shall:

1. Prepare Parts IA and II of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) and 4.5 and submit a Pollution Prevention Plan Summary to the Department in accordance with N.J.A.C. 7:1K-5.1 within 12 months after the date set by the U.S. EPA for the submittal of a toxic chemical release form pursuant to 42 U.S.C. § 11023;

2. Prepare Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by July 1 of the year following the submittal of the industrial facility's first Pollution Prevention Plan Summary to the Department;

3. Update Part IB of the Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-3.7 and submit a Pollution Prevention Plan Progress Report to the Department in accordance with N.J.A.C. 7:1K-6.1 by each July 1 thereafter; and

4. Revise or modify the industrial facility's Pollution Prevention Plan or Plan Summary as required by N.J.A.C. 7:1K-3.6 and 3.8.

(f) The owner or operator of an industrial facility who was not required to prepare and submit pollution prevention planning documents pursuant to (a) or (b) above, but who subsequently manufactures or uses a hazardous substance in a quantity above the threshold quantity established at N.J.A.C. 7:1K-3.5, shall prepare a Pollution Prevention Plan and submit a Plan Summary to the Department by July 1 of the year after the submittal to the Department of a Release and Pollution Prevention Report (RPPR), Form DEQ-114, Sections A and B.

(g) The owner or operator of a priority industrial facility who is no longer required to prepare and submit a toxic chemical release form pursuant to 42 U.S.C. § 11023 is no longer subject to the pollution prevention planning requirements of this chapter, unless designated as a priority industrial facility pursuant to N.J.A.C. 7:1K-3.2. The owner or operator of a facility shall notify the Department in writing concerning the facility status by July 1 of the year following its change in status to a facility to which this subsection applies.

(h) The owner or operator of a priority industrial facility required to prepare and submit a Federal Toxic Chemical Release Form pursuant to 42 U.S.C. § 11023 shall be exempt from preparing a Pollution Prevention Plan, and submitting a Plan Summary and annual Progress Reports in accordance with the schedule in this section, if the sum of nonproduct output and quantity shipped as or in product for that hazardous substance does not exceed 500 pounds, determined from the value reported in Section B of the most current RPPR.

(i) The provisions of (a) above notwithstanding, the owner or operator of a priority industrial facility in business prior to September 7, 2004, who has fulfilled the reporting requirements of this section utilizing a base year of 1993 shall continue to fulfill the requirements of this section utilizing 1993 as the base year.

(j) The provisions of (b) above notwithstanding, the owner or operator of a priority industrial facility in business prior to September 7, 2004, who has fulfilled the reporting requirements of this section utilizing a base year of 1995 shall continue to fulfill the requirements of this section utilizing 1995 as the base year.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 N.J.R. 1849(a), 26 N.J.R. 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• In (d), inserted ", for example, by the U.S. EPA's addition of new hazardous substances or new SIC codes," following "§ 11023"; in (d)1, substituted "12 months after the date set by the U.S. EPA for the submittal" for "18 months of becoming subject to the filing" following "within"; inserted a new (e); and recodified former (e) as (f).
• Special amendment, R.2004 d.87, effective 1/28/2004 (to expire August 15, 2004).
• See: 36 N.J.R. 1233(a).
• In (a), substituted "North American Industry Classification System code" for "Standard Industrial Classification" in the introductory paragraph; in (b), substituted "North American Industry Classification System code, as listed in Table 3.1(b) of Appendix D" for "Standard Industrial Classification other than those enumerated in (a) above" in the introductory paragraph; in (d), substituted "North American Industry Classification System" for "SIC" in the introductory paragraph.
• Administrative correction.
• See: 36 N.J.R. 2762(b).
• Adopted concurrent amendment, R.2004 d.330, effective 7/29/2004.
• See: 36 N.J.R. 1233(a), 36 N.J.R. 4127(b).
• Provisions of R.2004 d.87 adopted without change.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• Added (c) and (h) through (j); recodified former (c) and (d) as (d) and (e); recodified former (e) and (f) as (f) and (g) and rewrote the subsections.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-3.2 Designation of individual industrial facilities not subject to 42 U.S.C. Section 11023 as priority industrial facilities

(a) The Department may issue a directive to an owner or operator of an individual industrial facility which is not required to prepare and submit a toxic chemical release form pursuant to 42 U.S.C. § 11023 designating the industrial facility as a priority industrial facility for pollution prevention planning purposes in accordance with the criteria and procedures in this section.

(b) The Department may issue a directive designating an individual industrial facility which is not required to prepare and submit a toxic chemical release form pursuant to 42 U.S.C. § 11023 as a priority industrial facility for pollution prevention planning purposes if it determines that the industrial facility meets one or more of the following criteria:

1. The industrial facility uses or manufactures a hazardous substance in a quantity greater than the threshold established for the hazardous substance pursuant to N.J.A.C. 7:1K-3.4(a) or (b);

2. The volume of hazardous substances or hazardous wastes used, generated or released at the industrial facility contributes more than 10 percent to the total amount of hazardous substances used, generated or released in the State or region of the State;

3. The industrial facility has a history of unpermitted releases or non-compliance with the terms of any permit, certificate, registration, or any other relevant Department approval issued to the owner or operator of the industrial facility pursuant to N.J.S.A. 13:1D-1 et seq., N.J.S.A. 13:1E-1 et seq., 58:10A-1 et seq., or 26:2C-1; or

4. The industrial facility is the subject of emergency management actions taken by the Department under the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., including, but not limited to, actions pertaining to landfill capacity or sludge management.

(c) The procedure for issuing a draft directive designating an individual industrial facility as a priority industrial facility for pollution prevention planning purposes is as follows:

1. The Department shall prepare a draft directive containing a written finding that, based on one or more of the criteria at (b) above, requiring the industrial facility to conduct pollution prevention planning is likely to result in a reduction in the use or release of hazardous substances or the generation of hazardous waste or nonproduct output at the industrial facility and a reduction in the threat posed to the environment or public health by the use or release of hazardous substances or the generation of hazardous waste or nonproduct output at the industrial facility;

2. The draft directive shall be signed by the Director of the Office of Pollution Prevention or his or her designee;

3. The draft directive shall be mailed by the Department to the industrial facility by certified mail; and

4. The Department shall notify the public of the issuance of the draft directive by commonly available public notice mechanisms.

(d) The procedure for the issuance of a final directive designating an individual industrial facility as a priority industrial facility for pollution prevention planning purposes is as follows:

1. If the owner or operator of an industrial facility designated as a priority industrial facility for pollution prevention planning purposes believes that the written findings contained in the draft directive are incomplete or inaccurate, or otherwise disagrees with the Department's written findings, he or she may appeal the draft directive in writing to the Assistant Commissioner within 30 calendar days following his or her receipt of the draft directive. Such appeal shall identify the specific written finding(s) the owner or operator believes to be incomplete or inaccurate or with which the owner or operator disagrees and shall include any documentation necessary to support the owner or operator's claims;

2. The Assistant Commissioner shall review all appeals of draft directives under (d)1 above, and shall issue a final determination or final directive within 30 calendar days following receipt of the owner or operator's appeal. This shall constitute the final agency action of the Department on the directive; and

3. If the owner or operator of an industrial facility designated as a priority industrial facility for pollution prevention planning purposes does not appeal the issuance of the draft directive pursuant to (d)1 above, the draft directive becomes a final directive on the 30th day following receipt of the draft directive by the owner or operator.

(e) The owner or operator of an individual industrial facility designated as a priority industrial facility for pollution prevention planning purposes shall prepare a Pollution Prevention Plan and submit to the Department a Pollution Prevention Plan Summary within 18 months of receipt of the Department's final directive, and shall submit to the Department a Pollution Prevention Plan Progress Report each July 1 thereafter.

History

• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-3.3 Designation of NAICS Code(s) as priority industrial facilities (Reserved)

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In rule heading, substituted "NAICS" for "SIC".

N.J. Admin. Code § 7:1K-3.4 Scope of pollution prevention planning documents

(a) The owner or operator of a priority industrial facility is required to include in the industrial facility's Pollution Prevention Plans, Pollution Prevention Plan Summaries, and Pollution Prevention Plan Progress Reports information on any hazardous substance that is used or manufactured at the industrial facility in quantities above 10,000 pounds per year, or in quantities exceeding a lower threshold for the hazardous substance set by the Department in accordance with N.J.A.C. 7:1K-3.5(b), measured on a facility-wide basis, and which is listed on either:

1. The Toxic s Release Inventory (TRI) list established by the United States Environmental Protection Agency for reporting of hazardous substances pursuant to Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986, 42 § 11023; or

2. The list of additional hazardous substances designated by the Department for pollution prevention planning purposes pursuant to N.J.A.C. 7:1K-3.5 and appearing at Appendix A.

(b) The owner or operator of a priority industrial facility is not required to include in a Pollution Prevention Plan, Plan Summary or Plan Progress Report the following:

1. Information concerning a research and development laboratory, as defined at N.J.A.C. 7:1K-1.5, located at the industrial facility, for which the owner or operator has received a research and development laboratory exemption pursuant to the procedure at N.J.A.C. 7:1G-3.2(a)2;

2. Information concerning a pilot facility, as defined at N.J.A.C. 7:1K-1.5, for which the owner or operator has received a pilot facility exemption pursuant to the procedure at N.J.A.C. 7:1G-3.2(a)2;

3. Information concerning non-hazardous substances or product formulas for mixtures that include non-hazardous substances.

(c) The owner or operator of a priority industrial facility is not required to include in Part IB or Part II of a Pollution Prevention Plan or in a Pollution Prevention Plan Progress Report information pertaining to improvements in pollution prevention for production processes established after January 1, 1992, until the first five-year revision of the Pollution Prevention Plan and Pollution Prevention Plan Summary is prepared for the industrial facility at which the production process is carried out after the establishment of the production process, or until five years after the establishment of the production process, whichever is later. See N.J.A.C. 7:1K-3.9(c).

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-3.5 Threshold quantities for pollution prevention planning

(a) Except as otherwise provided by (b) below, the owner or operator of a priority industrial facility is required to include in a Pollution Prevention Plan, Pollution Prevention Plan Summary, and Pollution Prevention Plan Progress Report information on any hazardous substance which is used or manufactured by the industrial facility in quantities above 10,000 pounds per year, measured on a facility-wide basis.

(b) If the Department determines that the use or manufacture of a particular hazardous substance in quantities less than 10,000 pounds poses a significant risk to human health, including risks to occupational and consumer health, or the environment, it may require the owners or operators of priority industrial facilities to incorporate pollution prevention planning for the substance in quantities less than 10,000 pounds into their Pollution Prevention Plans, Plan Summaries, and Plan Progress Reports, as follows:

1. The Department may lower the pollution prevention planning threshold for a hazardous substance by adding the hazardous substance to Appendix B, Pollution Prevention Planning Thresholds Less Than 10,000 Pounds, incorporated herein by reference through rulemaking in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. A proposal to lower the pollution prevention planning threshold for a hazardous substance shall specifically include, in addition to the requirements of N.J.A.C. 1:30:

i. The chemical identity and Chemical Abstract Service (CAS) number of the hazardous substance;

ii. A brief basis and background for the Department's determination that the use or manufacture of a particular hazardous substance in quantities less than 10,000 pounds poses a significant risk to human health, including risks to occupational and consumer health, or the environment; and

iii. The new threshold planning quantity for the hazardous substance, in pounds.

2. If the threshold quantity for a hazardous substance for reporting under 42 U.S.C. § 11023 is decreased by the U.S. EPA below the threshold established by the Department under this section for that substance, the effective threshold for the purposes of this chapter shall be that established by the U.S. EPA.

(c) The owner or operator of a priority industrial facility which uses or manufactures a substance for which the Department has lowered the pollution prevention planning threshold shall revise the industrial facility's Pollution Prevention Plan and Pollution Prevention Plan Summary to incorporate information consistent with the new threshold for that substance. The revised Pollution Prevention Plan Summary shall be submitted to the Department within 12 months of the adoption of a lower pollution prevention planning threshold for the hazardous substance, and Pollution Prevention Progress Reports reflecting reporting for the revised threshold shall be submitted to the Department each July 1 thereafter.

History

• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Inserted (b)2.

N.J. Admin. Code § 7:1K-3.6 Additional hazardous substances for which pollution prevention planning is required

(a) The Department may designate a hazardous substance not on the TRI list to Appendix A, Additional Hazardous Substances For Pollution Prevention Planning, through rulemaking in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., upon consideration of all of the following criteria:

1. Prior regulation as a hazardous substance pursuant to 42 U.S.C. § 11023; the Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 1 et seq.; Section 4 of the Toxic Catastrophe Prevention Act, N.J.S.A. 13:1K-19 et seq.; or the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601;

2. The risk to human health or the environment due to the toxicity of the hazardous substance; and

3. Evidence of the production of the hazardous substance in commercial quantities that are used as a commodity in trade in the channels of commerce by the general public.

(b) A rule proposal to designate a hazardous substance not on the TRI list to Appendix A, Additional Hazardous Substances For Pollution Prevention Planning, incorporated herein by reference, shall specifically include, in addition to the requirements of N.J.A.C. 1:30:

1. The chemical identity and Chemical Abstract Service (CAS) number of the hazardous substance;

2. A brief basis and background for the Department's determination that, considering the criteria in (a) above, the toxicity of the hazardous substance justifies its designation to Appendix A, Additional Substances For Pollution Prevention Planning; and

3. The proposed threshold planning quantity for the hazardous substance, in pounds. If the proposed threshold planning quantity is less than 10,000 pounds, the proposal shall also contain the information required by N.J.A.C. 7:1K-3.4(b).

(c) The owner or operator of a priority industrial facility that uses or manufactures a substance designated by the Department to Appendix A as an additional hazardous substance for which pollution prevention planning is required shall revise the industrial facility's Pollution Prevention Plan and Pollution Prevention Plan Summary to include reporting on the newly added substance. The revised Pollution Prevention Plan Summary shall be submitted to the Department within 12 months of the adoption of this listing, and Pollution Prevention Progress Reports reflecting reporting for the newly added substance shall be submitted to the Department each July 1 thereafter.

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In (a), substituted "19" for "9" following "13:1K-".
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-3.7 Five-year revision of Pollution Prevention Plans and Pollution Prevention Plan Summaries

(a) The owner or operator of a priority industrial facility is required to prepare a complete revision of the industrial facility's Pollution Prevention Plan by July 1 of the fifth year after the year of the initial completion of Part IA of the industrial facility's Pollution Prevention Plan, and by July 1 of each fifth year thereafter.

(b) The owner or operator of a priority industrial facility is required to prepare and submit a complete revision of the industrial facility's Pollution Prevention Plan Summary by July 1 of the fifth year after the year of the initial preparation and submittal of the industrial facility's Pollution Prevention Plan Summary, and by July 1 of each fifth year thereafter.

History

• Repeal and New Rule by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).

N.J. Admin. Code § 7:1K-3.8 Annual Pollution Prevention Plan updates

The owner or operator of a priority industrial facility is required to annually update the information required to be recorded in Part IB of a Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-3.1 and 4.3(c).

N.J. Admin. Code § 7:1K-3.9 Pollution Prevention Plan, Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications

(a) The owner or operator of a priority industrial facility is required to modify the information required to be recorded or reported in a Pollution Prevention Plan, Plan Summary, or Plan Progress Report if any of the following occurs:

1. A production process changes or a grouping or targeting decision changes because the industrial facility:

i. Ceases operation of a production process or significantly expands the operation of a targeted production process;

ii. Installs a new and different primary component in a targeted production process or removes a primary component from a targeted production process, unless the installation or removal of the component results from the implementation of pollution prevention techniques at the industrial facility;

iii. Uses a hazardous substance, or generates or releases a nonproduct output or hazardous waste, at a targeted production process, in quantities above the threshold established for the hazardous substance at N.J.A.C. 7:1K-3.5, which was not used, released or generated when the industrial facility's current Pollution Prevention Plan was completed;

iv. Reclassifies an existing nonproduct output as a product, intermediate product, or co-product;

v. Modifies a grouping decision that affects a targeted process; or

vi. Modifies a targeting decision pursuant to N.J.A.C. 7:1K-4.4.

2. A hazardous substance quantity used or manufactured at a priority industrial facility changes relative to the planning threshold quantity established at N.J.A.C. 7:1K-3.5;

3. A hazardous substance is added to or deleted from the TRI list or Appendix A of this chapter and that hazardous substance is used or manufactured at a priority industrial facility above the threshold quantity established at N.J.A.C. 7:1K-3.5 in the year following the year the hazardous substance was added; or

4. The Pollution Prevention planning threshold for a hazardous substance established at N.J.A.C. 7:1K-3.5 is revised in accordance with that section and a priority industrial facility uses or manufactures the hazardous substance in the year following the year in which the revised threshold takes effect at a quantity above the revised threshold.

(b) If any of the changes described in (a) above occur at a priority industrial facility during the reporting year, the owner or operator of the priority industrial facility shall review and revise the following sections of its current Pollution Prevention Plan and Plan Summary as they apply to targeted production processes:

1. Facility-level inventory data required in Part IA of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.3(b)2 );

2. Process-level inventory data required in Part IA of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.3(b)3 );

3. Facility-level and process-level pollution prevention reductions required to be recorded in Part IB of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.3(c)1 ) or reported in a Pollution Prevention Progress Report (see N.J.A.C. 7:1K-6.1(c)4 );

4. Process-level pollution prevention reductions required to be recorded in Part IB of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.3(c)2 ) or reported in a Pollution Prevention Progress Report (see N.J.A.C. 7:1K-6.1(c)5 );

5. Five-year pollution prevention goals required in Part II of a Pollution Prevention Plan and in a Pollution Prevention Plan Summary (see N.J.A.C. 7:1K-4.5(a)7 through 10 and 5.1(b)3);

6. Description of targeted production processes required in Part II of a Pollution Prevention Plan and in a Pollution Prevention Plan Summary (see N.J.A.C. 7:1K-4.5(a)1 and 5.1(e)5i);

7. Planned pollution prevention options required in Part II of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.5(a)6 ); and

8. Implementation schedules for pollution prevention options required in Part II of a Pollution Prevention Plan (see N.J.A.C. 7:1K-4.5(a)11 ).

(c) If any of the Pollution Prevention Plan or Plan Summary sections listed in (b) above change as a result of the changes described in (a) above at a priority industrial facility during the reporting year, the owner or operator of a priority industrial facility shall review its Pollution Prevention Plan and Pollution Prevention Plan Summary and shall:

1. Prepare substitute pages containing the revised information for inclusion in the industrial facility's Pollution Prevention Plan;

2. Submit substitute pages containing the revised information for the Pollution Prevention Plan Summary at the same time it submits the industrial facility's annual Pollution Prevention Plan Progress Report for the year in which the changes took place; and

3. Submit substitute pages containing the revised information as part of the Pollution Prevention Plan Progress Report for the reporting year in which the changes took place and each subsequent year.

(d) For a source or production process, if the quantity of a hazardous substance used or manufactured annually at a priority industrial facility decreases below the threshold quantity established at N.J.A.C. 7:1K-3.5, the owner or operator shall notify the Department in writing of such change and the reason for the change by July 1 of the year following the decrease.

(e) If a hazardous substance is deleted from the TRI list or Appendix A of this chapter, and the substance is used or manufactured at a priority industrial facility above the threshold quantity established at N.J.A.C. 7:1K-3.5, the owner or operator of the facility shall submit a final Pollution Prevention Plan Progress Report for this substance by July 1 of the year following the deletion.

(f) If deletion of a hazardous substance from the TRI list or Appendix A of this chapter results in a priority industrial facility no longer being regulated under this chapter, the owner or operator of the facility shall submit a final Pollution Prevention Plan Progress Report by July 1 of the year following the deletion.

(g) The owner or operator of a priority industrial facility may, but is not required to, retarget its processes under N.J.A.C. 7:1K-4.4 and/or prepare a new Pollution Prevention Plan as part of the modification of its Pollution Prevention Plan, Plan Summary or Plan Progress Report pursuant to this section.

History

• Repeal and New Rule, R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Section was "Pollution Prevention Plan, Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications".
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In rule heading, deleted "resulting from production changes or grouping or targeting changes" following "modifications"; rewrote (a); in (b), added "and revise" following "shall review" in the introductory paragraph and changed the N.J.A.C. reference in 6; in (c), rewrote the introductory paragraph; added (d)-(f); recodified former (d) as (g).

N.J. Admin. Code § 7:1K-3.10 Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications due to improvements in pollution prevention for a production process established after January 1, 1992

(a) The owner or operator of a priority industrial facility is not required to include in Part IB or Part II of a Pollution Prevention Plan or in a Pollution Prevention Plan Progress Report information pertaining to improvements in pollution prevention for a production process established after January 1, 1992 until the first five-year revision of the Pollution Prevention Plan and Plan Summary is prepared for the industrial facility at which the production process is carried out after the establishment of the production process, or until five years after the establishment of the production process, whichever is later, subject to the following:

1. For the purposes of this subsection, a production process shall be considered to be established after January 1, 1992, if it meets any one of the following criteria:

i. The production process results in production of a new product, new coproduct, or new intermediate product after January 1, 1992 which was not identified in the industrial facility's most recent Pollution Prevention Plan;

ii. The production process results in production after January 1, 1992 of a product whose new active ingredient is chemically different from other products made at the industrial facility; or

iii. The production process results in production after January 1, 1992 of a product which is made by a different chemical route from other products made at the industrial facility, except for an improvement in the established chemistry such as a more efficient catalyst.

2. If an existing production process generates nonproduct output which is subsequently sold or designated as a product, coproduct, or intermediate product, it shall not be considered a production process established after January 1, 1992.

(b) The owner or operator of a priority industrial facility is required to complete all pollution prevention planning requirements for Part I of a Pollution Prevention Plan, N.J.A.C. 7:1K-4.3, for production processes established after January 1, 1992 not less than one year but no more than two years after establishing the new production process. This requirement shall be included as part of an annual update or five-year revision of the industrial facility's Pollution Prevention Plan and Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-3.6 or 3.7.

History

• New Rule, R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Recodified from N.J.A.C. 7:1K-3.13 by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• Former N.J.A.C. 7:1K-3.10, Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications resulting from change in hazardous substance quantity relative to threshold quantity, repealed.

N.J. Admin. Code § 7:1K-3.11 Department review of Pollution Prevention Plans, Plan Summaries and Plan Progress Reports

(a) The owner or operator of a priority industrial facility shall maintain a copy of the Pollution Prevention Plan, Plan Summary and Plan Progress Report for the industrial facility at the industrial facility, and these documents shall be available for inspection and review by the Department.

(b) The Department may require the owner or operator of a priority industrial facility to make any revisions or modifications to a Pollution Prevention Plan, Plan Summary or Plan Progress Report necessary for compliance with the provisions of the Act or this chapter.

(c) The Department shall conduct its review of Pollution Prevention Plans, Plan Summaries and Plan Progress Reports by applying the following review criteria:

For the purposes of review and/or enforcement action under N.J.A.C. 7:1K-12, the Department shall determine and evaluate the following:

i. Whether the industrial facility has prepared a Pollution Prevention Plan, Plan Summary and/or Plan Progress Report as required by N.J.A.C. 7:1K-3.1, 3.6 or 3.8;

ii. Whether the Pollution Prevention Plan is administratively complete. Administrative completeness review shall consist of a review by the Department to determine whether the items identified in N.J.A.C. 7:1K-4.3 and 4.5 have been included in the Pollution Prevention Plan, the items identified in N.J.A.C. 7:1K-5.1 have been included in the Pollution Prevention Plan Summary, and the items identified in N.J.A.C. 7:1K-6.1 have been included in the Pollution Prevention Plan Progress Report;

2. For the purposes of review, but not for the purposes of enforcement action under N.J.A.C. 7:1K-12, the Department shall determine and evaluate the following:

i. Whether the industrial facility's grouping decision includes a pollution treatment or control system or out-of-process recycling system as prohibited by N.J.A.C. 7:1K-4.2(d);

ii. Whether the pollution prevention methods contained in the Pollution Prevention Plan, Plan Summary and Plan Progress Report are consistent with the definition of pollution prevention found at N.J.A.C. 7:1K-1.5. Pollution prevention methods include, but are not limited to:

(1) Pollution prevention methods considered by the industrial facility for targeted sources or production processes pursuant to N.J.A.C. 7:1K-4.5(a) 3;

(2) Pollution prevention methods proposed by the industrial facility to achieve its use and nonproduct output reduction goals pursuant to N.J.A.C. 7:1K-4.5(a)6; and

(3) Pollution prevention activities that occurred prior to 1987 or prior to preparation of an initial Pollution Prevention Plan and which are recorded in a Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(b)2 v;

iii. How an owner or operator's grouping decisions under N.J.A.C. 7:1K-4.2 and 4.3(b)3iii impacts:

(1) The number of production processes at the industrial facility listed in the industrial facility's Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(b)3 i;

(2) The number of sources at the industrial facility listed in the industrial facility's Pollution Prevention Plan pursuant to N.J.A.C. 7:1K- 4.5(a)1;

(3) The unit of product for each grouped process, determined in accordance with N.J.A.C. 7:1K-4.3(b)3 ii and iii;

(4) The industrial facility's targeting decision pursuant to N.J.A.C. 7:1K-4.4;

(5) The identification of available and viable pollution prevention options at the industrial facility under N.J.A.C. 7:1K-4.5(a)4 and 6;

(6) The development of pollution prevention goals for the industrial facility pursuant to N.J.A.C. 7:1K-4.5(a)7 through 10; and

(7) The tracking of progress towards the industrial facility's pollution prevention goals;

iv. How an owner or operator's targeting decision under N.J.A.C. 7:1K-4.4 impacts:

(1) The development of pollution prevention goals for the industrial facility pursuant to N.J.A.C. 7:1K-4.5(a)7 through 10; and

(2) The development of source-specific information pursuant to N.J.A.C. 7:1K-4.5(a)2;

v. The value of Total Cost Assessment methods to the industrial facility's financial analysis under N.J.A.C. 7:1K-4.3(b)6 and 4.5(a)5ii;

vi. The industrial facility's methods for incorporating pollution prevention into corporate policies and decision-making;

vii. The industrial facility's methods for obtaining process-level and source-level estimates of use and nonproduct output;

viii. The industrial facility's unit of product for tracking pollution prevention progress, determined in accordance with N.J.A.C. 7:1K-4.3(b) 3ii;

ix. How the identification of products and production processes under N.J.A.C. 7:1K-4.3(b)3 ii affects pollution prevention planning and reporting at the industrial facility;

x. Whether any current environmental rules or regulations are obstacles to implementing pollution prevention methods identified in the industrial facility's Pollution Prevention Plan; and

xi. If applicable, whether the industrial facility has met the requirements for a Raw Material Substitution Certification set forth in N.J.A.C. 7:1K-4.6.

(d) If the Department determines through its review under (c) above that a priority industrial facility has not prepared a Pollution Prevention Plan, Plan Summary or Plan Progress Report as required by N.J.A.C. 7:1K-3.1 or that a Pollution Prevention Plan, Plan Summary or Plan Progress Report is administratively incomplete, it shall issue an administrative order in accordance with N.J.A.C. 7:1K-12.2 directing the owner or operator to prepare a Pollution Prevention Plan, Plan Summary or Plan Progress Report or modify the industrial facility's Pollution Prevention Plan, Plan Summary or Plan Progress Report.

(e) If the Department determines through its review under (c) above that it is possible for a priority industrial facility to improve its Pollution Prevention Plan, Plan Summary or Plan Progress Report, it may issue an opinion letter to the priority industrial facility in accordance with the following:

1. The Department may issue an opinion letter identifying sections of the Pollution Prevention Plan, Plan Summary or Plan Progress Report that could be amended to strengthen pollution prevention planning at the industrial facility, including improving the industrial facility's grouping or targeting decisions;

2. The Department's opinion letter shall include a description of suggested Pollution Prevention Plan, Plan Summary or Plan Progress Report amendments and a suggested time frame for implementing the amendments;

3. In lieu of implementing any of the amendments suggested by the Department in an opinion letter, the owner or operator of the industrial facility may submit a response letter supplementing or explaining information in the industrial facility's Pollution Prevention Plan, Plan Summary or Plan Progress Report;

4. After evaluating information submitted by the industrial facility in a response letter, the Department may reaffirm its original opinion letter, issue a revised opinion letter to the industrial facility, or withdraw its original opinion letter; and

5. The failure of an industrial facility to implement the amendments suggested in an opinion letter issued under this subsection shall not constitute non-compliance with this chapter and shall not be grounds for assessment of civil administrative penalties pursuant to N.J.A.C. 7:1K-12. See N.J.A.C. 7:1K-12.9.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Recodified from N.J.A.C. 7:1K-3.10 by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Recodified from N.J.A.C. 7:1K-3.14 and amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• Former N.J.A.C. 7:1K-3.11, Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications resulting from addition or deletion of a hazardous substance on the TRI list or in Appendix A, repealed.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-3.12 Submittal of Pollution Prevention Plans

(a) The Department may require the owner or operator of a priority industrial facility to submit a copy of the industrial facility's Pollution Prevention Plan to the Department for review if the industrial facility requests an out-of-process recycling exemption pursuant to N.J.A.C. 7:1K-4.7 or participates in the facility-wide permitting program pursuant to N.J.A.C. 7:1K-7.

(b) The Department shall provide the owner or operator of a priority industrial facility with at least 45 days advance notice by certified mail before requiring submission of its Pollution Prevention Plan for review under (a) above, in order to enable the industrial facility to assert a confidentiality claim pursuant to N.J.A.C. 7:1K-8.2, if applicable.

History

• New Rule, R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Recodified from N.J.A.C. 7:1K-3.11 by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Recodified from N.J.A.C. 7:1K-3.15 by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• Former N.J.A.C. 7:1K-3.12, Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report modifications resulting from change in planning threshold, repealed.

Subchapter 4 POLLUTION PREVENTION PLANS

N.J. Admin. Code § 7:1K-4.1 Sequence of pollution prevention planning

(a) The Department recommends that industrial facilities conduct pollution prevention planning steps in the following order:

1. Identify all production processes, and sources as applicable, in accordance with N.J.A.C. 7:1K-4.3(b)3;

2. Group sources or production processes in accordance with N.J.A.C. 7:1K-4.2;

3. Complete Part IA of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(b) except for the identification of production processes in accordance with N.J.A.C. 7:1K-4.3(b)3;

4. Target sources or production processes in accordance with N.J.A.C. 7:1K-4.4;

5. Complete Part II of a Pollution Prevention Plan, including setting use reduction and NPO reduction goals, in accordance with N.J.A.C. 7:1K-4.5;

6. Develop a Raw Material Substitution Certification, if applicable, in accordance with N.J.A.C. 7:1K-4.6;

7. Complete and submit a Pollution Prevention Plan Summary in accordance with N.J.A.C. 7:1K-5;

8. Request an out-of-process recycling authorization, if applicable, in accordance with N.J.A.C. 7:1K-4.7; and

9. Complete Part IB of a Pollution Prevention Plan in accordance with N.J.A.C. 7:1K-4.3(c) and submit a Pollution Prevention Plan Progress Report in accordance with N.J.A.C. 7:1K-6.

N.J. Admin. Code § 7:1K-4.2 Grouping of production processes or sources for pollution prevention planning purposes

(a) An owner or operator of a priority industrial facility may choose to group sources or production processes that use similar ingredients to produce one or more similar products so that the grouped sources or production processes are considered a single source or production process for pollution prevention planning purposes.

(b) An owner or operator of a priority industrial facility who chooses to group may consider any of the following criteria to determine whether sources or production processes that use similar ingredients to produce one or more similar products should be considered a single source or production process for pollution prevention planning purposes:

1. The function of the hazardous substance in the development of a product, that is, how is the hazardous substance used in the production process? This criterion is intended to aid industrial facilities in distinguishing between basic types or classes of products manufactured, for example, chemicals or articles;

2. The function of the equipment. This criterion is intended to aid industrial facilities in distinguishing between different modes of operation for production processes, for example, batch operations or continuous operations;

3. Whether the sources or processes use similar ingredients;

4. Whether the sources or processes produce similar products; and

5. Whether the sources or processes have any other characteristics that are similar.

(c) An owner or operator of a priority industrial facility who chooses to group shall describe grouped sources and production processes in Part I of the industrial facility's Pollution Prevention Plan and shall identify grouped sources and production processes in the industrial facility's Pollution Prevention Plan Summary and Pollution Prevention Plan Progress Report. The grouping of sources and production processes selected by the industrial facility shall not change throughout the pollution prevention planning process, including the preparation of Part II of a Pollution Prevention Plan, a Pollution Prevention Plan Summary or a Pollution Prevention Plan Progress Report, unless the industrial facility's pollution prevention planning documents are modified to reflect the new grouping as required by N.J.A.C. 7:1K-3.9(a)1 v.

(d) If hazardous substances are used, generated, treated or released in a pollution treatment or control system or out-of-process recycling system, those systems shall not be grouped with production processes for the purposes of including information in a Pollution Prevention Plan, Plan Summary, or Plan Progress Report. Pollution treatment or control systems or out-of-process recycling systems shall be considered as separate sources or production processes for pollution prevention planning purposes.

(e) If the owner or operator of a priority industrial facility decides to modify the industrial facility's groupings of sources or production processes following the completion of the industrial facility's Pollution Prevention Plan and Plan Summary, the owner or operator shall modify the industrial facility's Pollution Prevention Plan and Plan Summary to reflect the new groupings, and shall submit the modified Pollution Prevention Plan Summary to the Department within 90 days of making such modifications, as required by N.J.A.C. 7:1K-3.9(a)1 v.

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In (c), substituted "3.9(a)1v" for "3.8(c)" following "N.J.A.C. 7:1K-"; in (d), substituted "shall" for "may" preceding "be considered"; in (e), substituted "3.9(a)1v" for "3.8" following "N.J.A.C. 7:1K-".

N.J. Admin. Code § 7:1K-4.3 Contents of Part I of a Pollution Prevention Plan

(a) Part I of a Pollution Prevention Plan shall consist of the following two components:

1. Part IA of the Pollution Prevention Plan, containing administrative information about the facility; process-level and facility-level data about the use, generation and release of hazardous substances at the facility; information on the total costs of using and generating hazardous substances so as to compare these costs with those after implementing pollution prevention options in Part II cost analysis pursuant to N.J.A.C. 7:1K-4.5(a)5 ii; and certifications by officials of the industrial facility; as required by N.J.S.A. 13:1D-41(b)1 through 12; and

2. Part IB of the Pollution Prevention Plan, containing information on the reduction in use of hazardous substances and the generation of hazardous substances as nonproduct output at the industrial facility, as required by N.J.S.A. 13:1D-41(b)13 through 17.

(b) Part IA of a Pollution Prevention Plan shall be based on information covering the base year as defined in N.J.A.C. 7:1K-1.5 and shall contain, at a minimum, the following:

1. Personnel Information and Certifications:

i. A written certification, signed by the highest ranking corporate official with direct operating responsibility at the industrial facility, that reads as follows:

"I certify under penalty of law that I have read the Pollution Prevention Plan and that the Pollution Prevention Plan is true, accurate and complete to the best of my knowledge.";

ii. A written certification, signed by the highest ranking corporate official at the industrial facility, that reads as follows:

"I certify under penalty of law that I am familiar with the Pollution Prevention Plan and that it is the corporate policy of this industrial facility to achieve the goals of the Pollution Prevention Plan.";

iii. The name and business telephone number of the owner or operator of the industrial facility, and of the highest ranking corporate official at the industrial facility; and

iv. The name and business telephone number of a non-management employee representative at the industrial facility;

2. Facility-level information (Note: This is the same information to be reported in the Plan Progress Report pursuant to N.J.A.C. 7:1K-6.1(c)3. This information is the same as information previously submitted on the Release and Pollution Prevention Report (RPPR) pursuant to N.J.A.C. 7:1G. Inclusion of the RPPR in a P2 Plan along with the use calculation at (b)2vi below satisfies the requirement for facility-level information.)

i. The chemical identity and Chemical Abstract Service (CAS) number of each hazardous substance manufactured, stored or used at the industrial facility;

ii. Inventory data, in pounds, for the annual inputs, either in pure form or contained in a mixture, determined by direct measurement or by calculations and estimates using best engineering judgment, of each hazardous substance:

(1) Stored at the industrial facility on the first day of the reporting year;

(2) Brought into the industrial facility as a non-recycled material during the reporting year;

(3) Manufactured as a product, co-product or nonproduct output at the facility; and

(4) Recycled outside of a production process on-site or off-site and used as an input at the industrial facility;

iii. Inventory data, in pounds, for the annual output, either in pure form or contained in a mixture, determined by direct measurement or by calculations and estimates using best engineering judgment, of each hazardous substance:

(1) Stored at the industrial facility on the last day of the reporting year;

(2) Consumed at the industrial facility;

(3) Shipped off-site as a product or co-product; and

(4) Generated as nonproduct output;

iv. Recycling data, in pounds, for the quantities, measured as nonproduct output, of each hazardous substance determined by direct measurement or estimates using best engineering judgment:

(1) Recycled outside of a production process on-site; and

(2) Recycled outside of a production process off-site;

v. Release data, in pounds, for the quantities of each hazardous substance determined by direct measurement or estimates using best engineering judgment:

(1) Released to air through stack emissions;

(2) Released to air through fugitive emissions;

(3) Discharged to the waters of the State; and

(4) Generated as other waste streams:

(A) On-site land disposal;

(B) Transferred to other off-site locations;

(C) Released due to remedial actions, catastrophic events or one-time events not associated with production processes;

vi. Quantities of each hazardous substance used at the industrial facility, in pounds, determined by adding items in (b)2iii(2), (3) and (4) above for the facility;

vii. Optional: The owner or operator of a priority industrial facility may include a description of pollution prevention strategies implemented at the priority industrial facility prior to 1987 or prior to preparation of an initial Pollution Prevention Plan, provided that such strategies are consistent with the definition of pollution prevention at N.J.A.C. 7:1K-1.5;

viii. Optional: The owner or operator of a priority industrial facility may include information on pollution prevention progress that occurred at the facility between 1987 and the base year prior to preparation of an initial Pollution Prevention Plan for any hazardous substance;

ix. Additional facility-level hazardous substance information including, but not limited to:

(1) Products associated with hazardous substances and units of production;

(2) Reduction due to the discontinuance of operations; and

(3) Reductions due to substitution of hazardous substances with non-hazardous substances; and

x. The difference between annual input quantities as specified at (b)2ii above and annual output quantities as specified at (b)2iii through v above, shall not exceed five percent.

Process-level information (Note: This is the same information to be reported in the P2 Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)4 i and/or the P2-115, Pollution Prevention Process Level Data Worksheet, pursuant to N.J.A.C. 7:1K-4.9, as applicable.):

i. An identification of all production processes, using a unique identification number assigned by the industrial facility, and indicating whether each process is a grouped process as authorized by N.J.A.C. 7:1K-4.2, or a targeted process according to N.J.A.C. 7:1K-4.4. The unique identification number assigned to a process cannot be assigned to any other production process;

ii. For each production process, an identification of the product(s), coproduct(s) and/or intermediate product(s) produced, the unit used by the industrial facility for measuring production, and the total units of production produced during the year;

iii. A description of the owner or operator's grouping decision, if any, including a description of the unit for measuring production; and

iv. A process flow diagram.

4. Process-level inventory data:

i. Inventory data, in pounds, for the annual quantities, either in pure form or contained in a mixture, determined by direct measurement or calculations and estimates using best engineering judgment, of each hazardous substance:

(1) Contained in the products, coproducts or intermediate products produced in each production process;

(2) Consumed within each production process;

(3) Used in each production process;

(4) Generated as nonproduct output at each production process for each of the following categories:

(A) Recycled out of process;

(B) Destroyed by on-site treatment;

(C) Destroyed by on-site energy recovery;

(D) Stack air emissions;

(F) Fugitive air emissions;

(F) Discharge to POTWs;

(G) Discharge to groundwater;

(H) Discharge to surface waters;

(I) On-site land disposal;

(J) Transferred off-site; and

(K) Ending inventory, as non-product output minus beginning inventory, as non-product output;

(5) Released from each production process; and

(6) Recycled outside of each production process;

ii. Pollution Prevention techniques used in a given year;

iii. Whether or not a process was discontinued or sent off-site in a given year;

iv. Whether or not a facility made a process change that triggered a P2 Plan modification pursuant to N.J.A.C. 7:1K-3.9; and

v. An explanation on whether or not a facility's pollution prevention progress for targeted processes was less than anticipated;

5. Information and data on hazardous waste generation, treatment, storage and disposal activities:

i. Annual facility-level data for each hazardous waste generated, including, but not limited to:

(1) Amount generated at the industrial facility;

(2) Amount treated outside of a production process;

(3) Amount stored outside of a production process;

(4) Amount disposed outside of a production process;

(5) Reductions or increases in the amount of each hazardous waste generated, per unit of product, in comparison to the base year;

(6) Address of off-site treatment, storage or disposal facilities (TSD's); and

(7) Description of type of treatment at each treatment, storage or disposal facility (TSD);

ii. Facility-level recycling data for each hazardous waste, including by direct measurement or estimates using best engineering judgment:

(1) Amount recycled on site; and

(2) Amount recycled off site; and

iii. The annual amounts of each hazardous waste generated at each production process at the industrial facility, including reductions or increases in the amount of each hazardous waste generated, per unit of product, in comparison to the base year; and

6. Cost data:

i. An estimate for each source or production process, of the costs of using hazardous substances, generating hazardous substances as nonproduct output, and releasing hazardous substances, including, at a minimum:

(1) Storage and handling costs;

(2) Monitoring, tracking and reporting costs;

(3) Treatment costs;

(4) Transportation and disposal costs;

(5) Manifesting and labeling costs;

(6) Permit fees;

(7) Liability insurance costs, if the industrial facility is covered by liability insurance;

(8) Raw material costs:

(9) Safety and health compliance costs; and

(10) Optional: Additional costs which may be considered are found in the Pollution Prevention Planning Guidance Document published by the Department. The Pollution Prevention Planning Guidance Document describes the total cost assessment method of capital budgeting for industrial facilities who choose to apply total cost assessment to their sources and production processes.

(c) Part IB of a Pollution Prevention Plan shall contain information on the reduction or increase in use of hazardous substances and the generation of hazardous substances as nonproduct output, including, but not limited to, the following:

1. Facility-level information on pollution prevention reductions (Note: This is the same information to be reported in the Plan Progress Report pursuant to N.J.A.C. 7:1K-6.1(f)4 i through iv.).

i. Calculations of the reduction or increase in use of each hazardous substance in comparison to the base year;

ii. Calculations of the reduction or increase in the generation of each hazardous substance as nonproduct output, in comparison to the base year;

iii. Calculations of the reduction or increase in multimedia releases, by medium, after recycling and treatment, in comparison to the base year; and

iv. A numerical statement demonstrating the industrial facility's progress, if any, towards achieving each of the facility-level five-year goals reported in the industrial facility's Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)3. Quantities of coproducts sold by the industrial facility which are not the result of pollution prevention techniques do not count as progress towards achieving pollution prevention goals.

2. Information on Targeted Production Processes:

i. An identification of targeted production processes, using a unique identification number assigned by the industrial facility, and indicating whether each process is a grouped process as authorized by N.J.A.C. 7:1K-4.2. The unique identification number assigned to a targeted process cannot be assigned to any other process; and

ii. Process-level information on pollution prevention reductions for each hazardous substance within each targeted production process, including, but not limited to (Note: This is the same information to be reported in the Plan Progress Report pursuant to N.J.A.C. 7:1K-6.1(c)5 ii(1) through (7).):

(1) Calculations of the reduction or increase in use of each hazardous substance within each targeted production process per unit of product, as defined by N.J.A.C. 7:1K-1.5, in comparison to the base year;

(2) Calculations of the reduction or increase in the generation of nonproduct output for each targeted production process per unit of product, as defined by N.J.A.C. 7:1K-1.5, in comparison to the base year;

(3) Calculations of the reduction or increase in use of each hazardous substance per unit of product, as defined by N.J.A.C. 7:1K-1.5, attributed to the sale of coproducts from each production process, which are not the result of pollution prevention techniques, in comparison to the base year;

(4) Calculations of the reduction or increase in nonproduct output generation per unit of product, as defined by N.J.A.C. 7:1K-1.5, attributed to the sale of coproducts from each production process, which are not the result of pollution prevention techniques, in comparison to the base year;

(5) Calculations of the reduction or increase in multimedia releases from each targeted production process, by medium, after recycling and treatment, in comparison to the base year;

(6) A numerical statement demonstrating the industrial facility's progress, if any, towards achieving each of the process-level five-year goals for each targeted production process reported in the industrial facility's Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)5. Quantities of coproducts sold by the industrial facility which are not the result of pollution prevention techniques do not count as progress towards achieving use reduction or nonproduct output reduction goals; and

(7) An identification of the pollution prevention techniques used to achieve each reduction reported under (c)2ii(1) through (5) above; and

3. A reassessment of the industrial facility's five-year goals for reductions reported in the facility's Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)3 and 5, if applicable.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 N.J.R. 1849(a), 26 N.J.R. 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• In (b)6i, substituted "An estimate" for "A comprehensive financial analysis"; and in (c)1 and 2, substituted "base year" for "previous year" throughout.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• Rewrote (a)1 and (b); in (c), substituted "(f)4i through iv" for "(c)4i through iv" following "N.J.A.C. 7:1K-" in 1, deleted iii and iv, and recodified former v.-vi. as iii.-iv.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-4.4 Targeting of sources or production processes

(a) In regard to targeting of sources or production processes, the following cases are applicable:

1. The owner or operator of a priority industrial facility may choose to focus the industrial facility's pollution prevention planning resources of Pollution Prevention Plan by targeting for Part II pollution prevention planning those sources or production processes where significant progress can be made in the reduction of hazardous substances used, generated as non product output, or released at the industrial facility.

2. The owner or operator of a priority industrial facility shall target for Part II pollution prevention planning all sources or production processes that use or generate persistent, bioaccumulative, toxic (PBT) chemicals as nonproduct output at the industrial facility, if the facility level quantities are above the reporting thresholds contained at 40 CFR 372.

(b) Pursuant to (a)1 above, after preparing Part I of a Pollution Prevention Plan but prior to preparing Part II of a Pollution Prevention Plan, the owner or operator of a priority industrial facility may identify, for targeting purposes, sources or production processes which contribute:

1. Ninety percent or more of the total use of all hazardous substances at the industrial facility; or

2. Ninety percent or more of the total nonproduct output generated at the industrial facility; or

3. Ninety percent or more of the total multi-media environmental releases at the industrial facility; or

(Reserved)

(c) Once an industrial facility has identified the sources or production processes that meet the targeting criteria in (a) above, the industrial facility shall complete Part II of a Pollution Prevention Plan for each hazardous substance used, generated as nonproduct output, or released at the targeted source or production process.

(d) If an industrial facility does not identify targeted production processes using the criteria above, the industrial facility shall complete the requirements for Part II of a Pollution Prevention Plan for all sources and production processes at the industrial facility.

(e) If the owner or operator of a priority industrial facility decides to modify the industrial facility's targeting decision following the completion of the industrial facility's Pollution Prevention Plan and Plan Summary, the owner or operator shall modify the industrial facility's Pollution Prevention Plan and Plan Summary to reflect the new targeted sources and processes and shall submit the modified Pollution Prevention Plan Summary to the Department within 90 days of making such modifications, as required by N.J.A.C. 7:1K-3.9(a) 6.

History

• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• Renumbered former (b) through (d) as (c) through (e); and in (e), changed N.J.A.C. reference.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• Added (a); recodified former (a) as (a)1; added (a)2; in (b), substituted "Pursuant to (a)1 above, after" for "After" preceding "preparing Part I".

N.J. Admin. Code § 7:1K-4.5 Part II of a Pollution Prevention Plan

(a) Part II of a Pollution Prevention Plan shall contain, at a minimum, the following information:

1. A narrative description of each targeted production process, and of each targeted source that is not grouped within a targeted production process, including a description of the process, lines, methods, activities or techniques used in the process or source;

2. Inventory data, in pounds, for the annual quantities, either in pure form or contained in a mixture, determined by direct measurement or calculations and estimates using best engineering judgment, of each hazardous substance generated as nonproduct output at each source within each targeted production process;

3. If determined to be necessary by the industrial facility, detailed process-level inventory data for each targeted production process or specific targeted production processes;

4. An identification, for each targeted production process and targeted source, of available pollution prevention options, including procedures, technologies and equipment, that may substantially reduce the use and generation of hazardous substances;

5. A feasibility analysis of pollution prevention options identified under (a)4 above, including:

i. A technical analysis of specific pollution prevention options identified under (a)4 above; and

ii. An estimate of the costs in order to determine potential savings, realized by investments in pollution prevention options compared to the costs of using hazardous substances, generating hazardous substances as nonproduct output, and releasing hazardous substances as determined in N.J.A.C. 7:1K-4.3(b)6, including, at a minimum:

(1) Storage and handling costs;

(2) Monitoring, tracking and reporting costs;

(3) Treatment costs;

(4) Transportation and disposal costs;

(5) Manifesting and labeling costs;

(6) Permit fees;

(7) Liability insurance costs, if the industrial facility is covered by liability insurance;

(8) Raw material costs;

(9) Safety and health compliance costs; and

(10) Optional: Additional costs which may be considered are found in the Pollution Prevention Planning Guidance Document published by the Department. The Pollution Prevention Planning Guidance Document describes the total cost assessment method of capital budgeting for industrial facilities who choose to apply total cost assessment to their sources and production processes;

6. For each targeted production process, a description of pollution prevention options the owner or operator of the industrial facility intends to implement during the next five years;

7. For the industrial facility, the five-year numeric goal for reducing the use of each hazardous substance (Note: The facility-level goals to be reported in (a)6 and 7 are the same as those reported in the Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)3 i and ii.);

8. For the industrial facility, the five-year numeric goal for reducing the generation of each hazardous substance as nonproduct output;

9. For each targeted production process, the five-year numeric goal for reducing the use of each hazardous substance per unit of product, as defined in N.J.A.C. 7:1K-1.5 (Note: The process-level goals to be reported in (a)8 and 9 are the same goals reported in the Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)5 ii and iii.);

10. For each targeted production process, the five-year numeric goal for reducing the generation of each hazardous substance as nonproduct output per unit of product, as defined in N.J.A.C. 7:1K-1.5;

11. A schedule for implementing the pollution prevention options identified in (a)5 above, including at a minimum:

i. Start date for construction or other activities which may require pre-approval from the Department through the issuance of permits or other approvals, if applicable; and

ii. Completion date for implementing the pollution prevention options identified under (a)5 above;

12. A quantitative description of the impact that the industrial facility's implementation of individual pollution prevention techniques is expected to have on post-treatment multimedia releases of hazardous substances by the industrial facility, reported by medium; and

13. A description of the valuation methods used by the owner or operator of the industrial facility to determine not to install or utilize each option, identified under (a)4 above, that would have resulted in a greater percentage reduction in the use of hazardous substances per unit of product or the generation of nonproduct output per unit of product than the options identified at (a)5i above.

(b) An industrial facility is not required to include information on the product, co-product or intermediate product of a production process in developing the industrial facility's use reduction and NPO reduction goals pursuant to (a) above.

(c) An industrial facility filing a Raw Material Substitution Certification with the Department as part of the industrial facility's Pollution Prevention Plan Summary is not required to include information on hazardous substances listed on the Raw Material Substitution Certification in developing the industrial facility's use reduction goals pursuant to (a) above. See N.J.A.C. 7:1K-4.6.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 N.J.R. 1849(a), 26 N.J.R. 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• In (a), substituted "An estimate" for "A comprehensive financial analysis" at the beginning of 5ii, and made internal reference changes in 13.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• In (a)5ii, substituted "in order to determine potential" for "or" preceding "savings,"; rewrote (a)5ii(8); added (a)5ii(9); recodified former (a)5ii(9) as (a)5ii(10); in (a)12, added "and" to the end of the paragraph; in (a)13, deleted "; and" and added "." at the end of the paragraph; deleted (a)14.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-4.6 Procedure for development of a Raw Material Substitution Certification

(a) Following completion of a Parts I and II of a Pollution Prevention Plan, an owner or operator of a priority industrial facility may choose to file with the Department a Raw Material Substitution Certification listing the individual hazardous substances used in specific targeted production processes at the facility for which the owner or operator of the industrial facility has determined through preparation and completion of a Pollution Prevention Plan that it is not technically or economically feasible to reduce the input use of the hazardous substance below current levels by replacing the substance with a different raw material in the specific production process.

(b) The procedure for developing and filing a Raw Material Substitution Certification is as follows:

1. A Raw Material Substitution Certification shall consist of:

i. A list of the individual hazardous substances used in specific targeted production processes at the facility for which the owner or operator of the priority industrial facility has determined through preparation and completion of a Pollution Prevention Plan that it is not technically or economically feasible to reduce the input use of the hazardous substance below current levels by replacing the substance with a different raw material in the specific production process;

ii. A certification by the highest ranking corporate official with direct operating responsibility at the industrial facility that reads as follows:

"I certify that Parts I and II of the Pollution Prevention Plan have been completed for the specific combination of hazardous substances and production processes for which this Raw Material Substitution Certification is being claimed and that through completion of the Pollution Prevention Plan this industrial facility has determined that it is not technically or economically feasible to reduce the input use of the hazardous substance below current levels by replacing the substance with a different raw material in the specific production process.";

iii. A description of whether pollution prevention methods other than raw material substitution, have been considered for that specific combination of hazardous substances and production processes listed under (b)1i above. Examples of other pollution prevention methods include: product reformulation, production process redesign or modification, in-process recycling, and improved operation and maintenance; and

iv. A brief narrative summary of the technical and economic analysis conducted by the industrial facility in Part II of the Pollution Prevention Plan showing that the hazardous substances listed under (b)1i above cannot be substituted within the targeted production processes listed under (b)1i above; and

2. The owner or operator of the industrial facility shall file a Raw Material Substitution Certification with the Department as part of the industrial facility's Pollution Prevention Plan Summary.

(c) An industrial facility filing a Raw Material Substitution Certification with the Department as part of the industrial facility's Pollution Prevention Plan Summary is not required to include information on hazardous substances listed on the Raw Material Substitution Certification in developing the industrial facility's use reduction goals pursuant to N.J.A.C. 7:1K-4.5(a) 6, 7 and 10.

N.J. Admin. Code § 7:1K-4.7 Out-of-process recycling

(a) The owner or operator of a priority industrial facility may include a description of on-site, out-of-process recycling activities in the industrial facility's Pollution Prevention Plan and Pollution Prevention Plan Summary if pollution prevention strategies are not reasonably available to the industrial facility for specific hazardous substance(s) in specific production process(es).

(b) The owner or operator of the industrial facility shall include in the industrial facility's Pollution Prevention Plan and Pollution Prevention Plan Summary a brief technical and economic analysis of whether pollution prevention strategies are reasonably available to the industrial facility for the specific hazardous substance(s) in specific production processes identified and a schedule for implementing on-site, out-of-process recycling activities for the specific hazardous substances in specific production process(es) covered by the out-of-process recycling. However, any out-of-process recycling activities reported by the industrial facility in its Pollution Prevention Plan or Pollution Prevention Plan Summary pursuant to this section shall not be included in the industrial facility's use reduction or nonproduct output reduction goals.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• Rewrote the section.

N.J. Admin. Code § 7:1K-4.8 Departmental access to Pollution Prevention Plans

The owner or operator of a priority industrial facility shall maintain a copy of the Pollution Prevention Plan for the industrial facility at the industrial facility, where it shall be available for inspection by the Department.

N.J. Admin. Code § 7:1K-4.9 Pollution Prevention Process-Level Data Worksheet in the Pollution Prevention Plan

(a) An owner or operator of a priority industrial facility shall include in a Pollution Prevention Plan a P2-115, Pollution Prevention Process-Level Data Worksheet, available from the Department (at the address in (a)1 below), for recording key process-level data elements required for each process in the Pollution Prevention Plan. These include type and units of product, process-level use and nonproduct output (NPO), and data components needed to compute use and NPO. The worksheet(s) shall include base year data and shall be annually updated and included in the Plan. At the discretion of the Department, an owner or operator may include in the Pollution Prevention Plan an alternate version of this worksheet, such as an electronic spreadsheet, as developed by the facility. The worksheet shall be included in the Pollution Prevention Plan by the next submittal to the Department of a Release and Pollution Prevention Report (RPPR), or by the next revision of the P2 Plan, whichever occurs first.

1. The worksheet may be obtained at the following address:

Bureau of Compliance Support and Pollution Prevention

Department of Environmental Protection

Mail Code 401-04B

PO Box 420

Trenton, New Jersey 08625-0420

(609) 777-0518, or

by internet: http://www.nj.gov/dep/enforcement/pp.html

History

• New Rule, R.2000 d.118, effective 3/20/2000.
• See: 31 N.J.R. 4187(a), 32 N.J.R. 1001(a).
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• In (a), added "P2-115," preceding "Pollution Prevention Process-Level" and added "P2" following "revision of the" in the introductory paragraph; in the contact information in (a)1, substituted "Right to Know" for "Permit Coordination", changed the PO Box number from "423" to "443", changed the zip code from "08625-0423" to "08625-0443", and added the email address.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-4.10 Retention of Pollution Prevention Plans, Plan Summaries and Progress Reports at the site

An owner or operator of a priority industrial facility shall retain Pollution Prevention Plans, Plan Summaries and Progress Reports at the site for a minimum of five years beyond the end of the previous cycle.

History

• New Rule by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).

Subchapter 5 POLLUTION PREVENTION PLAN SUMMARY

N.J. Admin. Code § 7:1K-5.1 Pollution Prevention Plan Summary reporting requirements

(a) The owner or operator of a priority industrial facility is required to:

Beginning with reporting year 2005, prepare and submit to the Department electronically using the Department's on-line reporting website located at http://www.nj.gov/dep/online/ by the deadline specified at N.J.A.C. 7:1K-3.1, a Pollution Prevention Plan Summary summarizing the industrial facility's Pollution Prevention Plan; and

2. Revise, update or modify the industrial facility's Pollution Prevention Plan Summary thereafter in accordance with N.J.A.C. 7:1K-3.6, 3.8 and 3.9.

(b) If it is a hardship for an owner or operator of a priority industrial facility to submit a Pollution Prevention Plan Summary electronically, the employer may request approval from the Department to submit the Pollution Prevention Plan Summary in paper form. The Department shall approve such a request provided that:

1. The request is submitted no later than July 1 of the submittal year;

2. The owner or operator of a priority industrial facility explains:

i. The grounds for the hardship that electronic submittal would impose; and

ii. The effort(s) the owner or operator of a priority industrial facility will make to ensure the facility's ability to make electronic submittals in the future; and

3. The owner or operator of a priority industrial facility makes every effort to become able to submit the form electronically in future years; and

(c) The owner or operator of a priority industrial facility that is claiming confidentiality under N.J.A.C. 7:1K-8.2(b) for any part of the Pollution Prevention Plan Summary must submit a paper copy of the confidential Pollution Prevention Plan Summary to the Department.

(d) The Department shall approve, on a case-by-case basis, an extension of a reporting deadline if a facility is unable to electronically file its Pollution Prevention Plan Summary due to a malfunction in the Department's electronic reporting system. The Department shall not approve any extension due to a malfunction in a facility's electronic information technology system, unless the facility verifies the malfunction in writing and promptly files the report by other means.

(e) A Pollution Prevention Plan Summary shall consist, at a minimum, of the following:

1. Administrative information:

i. The name of the industrial facility;

ii. The address of the industrial facility;

iii. The location of the industrial facility, using the industrial facility's centroid coordinate in New Jersey State Plane Feet;

iv. Relevant facility identification numbers assigned to the industrial facility by any State or Federal agency;

v. The name and business telephone number of the owner or operator of the industrial facility, and of the highest ranking corporate official at the industrial facility; and

vi. The name and business telephone number of the non-management employee representative at the Industrial facility.

2. Certification:

i. A written certification, signed by the owner or operator of the industrial facility that reads as follows:

"I certify under penalty of law that a Pollution Prevention Plan has been prepared for this industrial facility and that the Plan is available at the facility for inspection by the Department. I further certify that the information submitted in this Pollution Prevention Plan Summary is true, accurate and complete to the best of my knowledge.";

3. Facility-level information:

i. Five-year numeric goals for reducing the use of each hazardous substance;

ii. Five-year numeric goals for reducing the generation of each hazardous substance as nonproduct output (Note: The facility-level goals to be reported in (e)3i and ii are the same as those to be included in the Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.5(a)6 through 9.);

iii. A list of permits issued by the Department to the industrial facility for the use or multimedia release of hazardous substances, the discharge of pollutants, and the emission of pollutants or air contaminants including, but not limited to, permits issued pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Environmental Cleanup and Responsibility Act, N.J.S.A. 13:1K-6 et seq.; the Toxic Catastrophe Prevention Act, N.J.S.A. 13:1K-19 et seq.; the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; or the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.;

iv. Optional: A priority industrial facility may include information on pollution prevention strategies implemented at the facility prior to 1987, provided that such strategies are consistent with the definition of pollution prevention at N.J.A.C. 7:1K-1.5; and

v. Optional: A priority industrial facility may include information on pollution prevention progress that occurred at the facility between 1987 and the base year for any hazardous substance;

4. Process-level information (Note: This is the same information contained in Part 1A of the Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(b) 3i and ii):

i. An identification of each production process, using a unique identification number assigned by the facility, and indicating whether each process is a grouped process as authorized by N.J.A.C. 7:1K-4.2. The unique identification number assigned to a process cannot be assigned to any other production process;

ii. A description of each production process using the nomenclature provided by the Department in Appendix C, incorporated herein by reference; and

iii. A description of each product using a six-digit North American Industry Classification System (NAICS) code. A list of applicable six-digit NAICS codes is included in the tables in Appendix D; and

iv.

(Reserved); and

Information on targeted production processes:

i. An identification of each targeted production process, using a unique identification number assigned by the facility, and indicating whether each process is a grouped process as authorized by N.J.A.C. 7:1K-4.2. The unique identification number assigned to a targeted process cannot be assigned to any other process;

ii. Five-year numeric goals for reducing the use of each hazardous substance per unit of product, as defined by N.J.A.C. 7:1K-1.5, for each targeted production process;

iii. Five-year numeric goals for reducing the generation of nonproduct output per unit of product, as defined by N.J.A.C. 7:1K-1.5, for each hazardous substance in each targeted production process (Note: The process-level goals to be reported in (e)5i and ii are the same goals to be included in the Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.5(a)10 and 11.);

iv. A description of the pollution prevention techniques the owner or operator of the industrial facility intends to implement during the five-year planning period to achieve the five-year reduction goals listed under (e)5ii and iii above; and

v. A schedule for implementing the pollution prevention techniques identified in (e)5iv above, including:

(1) Start date for construction or other activities which may require pre-approval from the Department through the issuance of permits or other approvals, if applicable; and

(2) Completion date for implementing the pollution prevention techniques identified in (e)5v above;

vi. An indication, for each hazardous substance used in a targeted production process, of whether the hazardous substance is used by the facility on an annual basis in a quantity of zero to 5,000 pounds, 5,000 pounds to 10,000 pounds, 10,000 to 25,000 pounds, 25,000 to 50,000 pounds, or greater than 50,000 pounds;

vii. If applicable: A Raw Material Substitution Certification for individual hazardous substances used in specific targeted production processes at the facility, completed in accordance with N.J.A.C. 7:1K-4.6; and

viii. An indication of whether the facility's targeting decision was based on 90 percent or more of the total use of hazardous substances at the industrial facility; 90 percent or more of the total nonproduct output generated at the industrial facility; or 90 percent or more of the total multi-media environmental releases at the industrial facility (in accordance with N.J.A.C. 7:1K-4.4).

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 N.J.R. 1849(a), 26 N.J.R. 842(a).
• Special amendment, R.2004 d.87, effective 1/28/2004 (to expire August 15, 2004).
• See: 36 N.J.R. 1233(a).
• Rewrote (b)4iii.
• Administrative correction.
• See: 36 N.J.R. 2762(b).
• Adopted concurrent amendment, R.2004 d.330, effective 7/29/2004.
• See: 36 N.J.R. 1233(a), 36 N.J.R. 4127(b).
• Provisions of R.2004 d.87 adopted without change.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 N.J.R. 984(a), 37 N.J.R. 3637(c).
• In (a), rewrote 1; added (b)-(d); recodified former (b) as (e) and rewrote subsection.

N.J. Admin. Code § 7:1K-5.2 Optional submittal of Pollution Prevention Process-Level Data Worksheet with the Pollution Prevention Plan Summary

An owner or operator of a priority industrial facility may submit Pollution Prevention Process-Level Data Worksheet(s), as set forth at N.J.A.C. 7:1K-4.9, with the Pollution Prevention Plan Summary. In a worksheet for each process at the facility, base year data would be recorded.

History

• New Rule, R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).

Subchapter 6 POLLUTION PREVENTION PLAN PROGRESS REPORT

N.J. Admin. Code § 7:1K-6.1 Pollution Prevention Plan progress reporting requirements

(a) The owner or operator of a priority industrial facility is required to:

Beginning with reporting year 2005, prepare and submit to the Department, by July 1 of each year after completion of the facility's initial Pollution Prevention Plan, electronically using the Department's on-line reporting website located at http://www.nj.gov/dep/online/, a Pollution Prevention Plan Progress Report that indicates the progress made since the base year in achieving the use reduction and non-product output reduction goals set forth in the facility's current Pollution Prevention Plan; and

2. Revise, update or modify the industrial facility's Pollution Prevention Plan Progress Report thereafter in accordance with N.J.A.C. 7:1K-3.6, 3.8 and 3.9.

(b) If it is a hardship for an owner or operator of a priority industrial facility to submit a Pollution Prevention Plan Progress Report electronically, the employer may request approval from the Department to submit the Pollution Prevention Plan Progress Report in paper form. The Department shall approve such a request provided that:

1. The request is submitted no later than July 1 of the submittal year;

2. The owner or operator of a priority industrial facility explains:

i. The grounds for the hardship that electronic submittal would impose; and

ii. The effort(s) the owner or operator of a priority industrial facility will make to ensure the facility's ability to make electronic submittals in the future; and

3. The owner or operator of a priority industrial facility makes every effort to become able to submit the form electronically in future years.

(c) The owner or operator of a priority industrial facility that is claiming confidentiality for any part of the Pollution Prevention Plan Progress Report must submit a paper copy of the confidential Pollution Prevention Plan Progress Report to the Department.

(d) The Department shall approve, on a case-by-case basis, an extension of a reporting deadline if a facility is unable to electronically file its Pollution Prevention Plan Progress Report due to a malfunction in the Department's electronic reporting system. The Department shall not approve any extension due to a malfunction in a facility's electronic information technology system, unless the facility verifies the malfunction in writing and promptly files the report by other means.

(e) The Department may combine the reporting elements of this section with those required for Community Right-to-Know Reporting pursuant to N.J.S.A. 34:5A-1 et seq. in order to allow a priority industrial facility to submit a combined reporting form to satisfy the requirements of N.J.A.C. 7:1G and N.J.A.C. 7:1K.

(f) A Pollution Prevention Plan Progress Report shall consist, at a minimum, of the following:

1. Administrative information:

i. The name of the industrial facility;

ii. The address of the industrial facility;

iii. The Location of the industrial facility, using the industrial facility's centroid coordinate in New Jersey State Plane Feet; and

iv. Relevant facility identification numbers assigned to the industrial facility by any State or Federal agency;

2. Certification:

i. A written certification, signed by the owner or operator of the industrial facility, that reads as follows:

"I certify under penalty of law that the information submitted in this Pollution Prevention Plan Progress Report is true, accurate and complete to the best of my knowledge.";

3. Facility-level inventory and release data (Note: This information replaces information that was previously submitted on Form DEQ-114 and is the same information to be included in Part IA of the Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(b)2.):

i. The chemical identity and Chemical Abstract Service (CAS) number of each hazardous substance manufactured, stored or used at the industrial facility;

ii. Inventory data, in pounds, for the annual inputs, either in pure form or contained in a mixture, determined by direct measurement or by calculations and estimates using best engineering judgment, of each hazardous substance:

(1) Stored at the industrial facility on the first day of the reporting year;

(2) Brought into the industrial facility as a non-recycled material during the reporting year;

(3) Manufactured as a product, co-product or nonproduct output at the industrial facility; and

(4) Recycled outside of a production process on-site or off-site and used as an input at the industrial facility;

iii. Inventory data, in pounds, for the annual output, either in pure form or contained in a mixture, determined by direct measurement or calculations, using best engineering judgment, of each hazardous substance:

(1) Stored at the industrial facility on the last day of the reporting year;

(2) Consumed at the industrial facility;

(3) Shipped off-site as a product or co-product; and

(4) Generated as nonproduct output;

iv. Recycling data, in pounds, for the quantities, determined by direct measurement or estimates using best engineering judgment, of each hazardous substance:

(1) Recycled outside of a production process on-site; and

(2) Recycled outside of a production process off-site;

v. Release data, in pounds, for the quantities of each hazardous substance:

(1) Released to air through stack emissions;

(2) Released to air through fugitive emissions;

(3) Discharged to the waters of the State; and

(4) Generated as other waste streams; and

vi. Quantities of each hazardous substance used at the industrial facility, in pounds, determined by adding items in (f)3iii (2), (3) and (4) above for the facility;

Facility-level information on pollution prevention reductions:

i. Calculations of the reductions or increase in use of each hazardous substance in comparison to the base year;

ii. Calculations of the reduction or increase in the generation of each hazardous substance as nonproduct output, in comparison to the base year;

iii. Calculations of the reduction or increase in multimedia releases, by medium, after recycling and treatment, in comparison to the base year; and

iv. A numerical statement demonstrating the industrial facility's progress, if any, towards achieving each of the facility-level five-year goals reported in the industrial facility's Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-1.5(b)3. Quantities of coproducts sold by the industrial facility which are not the result of pollution prevention techniques do not count as progress towards achieving pollution prevention goals. (Note: The information to be reported in (f)4i through iv is the same information to be included in a Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(c)1 i through iv.)

5. Information on targeted production processes:

i. An identification of targeted production processes, using a unique identification number assigned by the industrial facility, and indicating whether each process is a grouped process as authorized by N.J.A.C. 7:1K-4.2. The unique identification number assigned to a targeted process cannot be assigned to any other process;

ii. Process-level information on pollution prevention reductions for each hazardous substance within each targeted production process, including, but not limited to:

(1) Calculations of the reduction or increase in use of each hazardous substance within each targeted production process per unit of product, as defined by N.J.A.C. 7:1K-1.5, in comparison to the base year;

(2) Calculations of the reduction or increase in the generation of nonproduct output for each targeted production process per unit of product, as defined by N.J.A.C. 71K-1.5, in comparison to the base year;

(3) Calculations of the reduction or increase in use of each hazardous substance and use of each hazardous substance per unit of product, as defined by N.J.A.C. 7:1K-1.5, attributed to the sale of coproducts from each targeted production process, which are not the result of pollution prevention techniques, in comparison to the base year;

(4) Calculations of the reduction or increase in nonproduct output generation per unit of product, as defined by N.J.A.C. 7:1K-1.5, attributed to the sale of coproducts from each targeted production process, which are not the result of pollution prevention techniques, in comparison to the base year;

(5) Calculations of the reduction or increase in multimedia releases from each targeted production process, by medium, after recycling and treatment, in comparison to the base year;

(6) A numerical statement demonstrating the industrial facility's progress, if any, towards achieving each of the process-level five-year goals for each targeted production process reported in the industrial facility's Pollution Prevention Plan Summary pursuant to N.J.A.C. 7:1K-5.1(b)5. Quantities of coproducts sold by the industrial facility which are not the result of pollution prevention techniques do not count as progress towards achieving use reduction or nonproduct output reduction goals;

(7) An identification of the pollution prevention techniques used to achieve each reduction reported under (f)5ii(1) through (5) above (Note: The information to be reported in (f)5ii(1) through (7) is the same information to be included in Part IB of a Pollution Prevention Plan pursuant to N.J.A.C. 7:1K-4.3(c)2 ii(1) through (7).);

(8) An indication of whether a Raw Material Substitution Certification was filed as part of the industrial facility's current Pollution Prevention Plan Summary; and

(9) A description of the pollution prevention techniques the owner or operator of the industrial facility intends to implement for each targeted production process during the forthcoming year in order to achieve the use reduction and nonproduct output reduction goals and implementation schedule reported in the facility's current Pollution Prevention Plan Summary;

6. Information on progress which is less than anticipated:

i. If applicable, an explanation of why the facility's annual progress was less than that anticipated in the use reduction and nonproduct output reduction goals and implementation schedule reported in the facility's current Pollution Prevention Plan Summary;

7. Release and Pollution Prevention Reporting Elements:

i. All information required by N.J.A.C. 7:1G to be reported to the Department on Form DEQ-114 (the Release and Pollution Prevention Report) that is not otherwise specifically listed at (f)1 through 6 above; and

8. Checkoff box for production process changes:

i. If applicable, a facility should indicate that a production process change that occurred at the industrial facility has triggered a modification of the industrial facility's Pollution Prevention Plan, Plan Summary or Plan Progress Report by checking off the box or boxes corresponding to the modification criterion or criteria at N.J.A.C. 7:1K-3.9(a).

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• In (a), substituted "since the base" for "in the previous" following "made" in 1, and changed N.J.A.C. references in 2; and in (c)4 and 5, substituted "base year" for "previous year" throughout.
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• Rewrote the section.

N.J. Admin. Code § 7:1K-6.2 Optional submittal of Pollution Prevention Process-Level Data Worksheet in lieu of the Pollution Prevention Plan Progress Report

An owner or operator of a priority industrial facility may submit annually updated Pollution Prevention Process-Level Data Worksheet(s), as set forth at N.J.A.C. 7:1K-4.9, in lieu of the Pollution Prevention Plan Progress Report (DEQ-114, RPPR, Sections C and D). In a worksheet for each process at the facility, the latest annual data would be recorded.

History

• New Rule, R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).

Subchapter 7 FACILITY-WIDE PERMITS

N.J. Admin. Code § 7:1K-7.1 Scope and authority

(a) This subchapter constitutes the Department's requirements and procedures for implementing a pilot program for issuing facility-wide permits, as required by N.J.S.A. 13:1D-48.

(b) This subchapter shall apply, to the extent statutorily permissible, to:

1. Incorporating pollution prevention planning by industrial facilities as an element of the Department's permit programs;

2. Establishing permitted release limits using pollution prevention techniques;

3. Consolidating the Department's administrative and procedural requirements for issuing single-media permits;

4. Consolidating the administrative and technical information required by the Department in permit applications; and

5. Developing an integrated data system for tracking use, nonproduct output and releases from industrial facilities and documenting compliance or non-compliance with the terms and conditions of permits.

(c) The Department may revoke, issue, reissue or modify any permit, certificate, registration, or any other relevant approval issued to the owner or operator of a priority industrial facility by the Department pursuant to N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; or the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq. for the purpose of issuing a facility-wide permit.

(d) Any action taken by the Department pursuant to this subchapter to revoke, issue, reissue or modify any permit, certificate, registration or other Departmental approval may be appealed pursuant to the provisions of N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; or the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq. as appropriate.

(e) The Department shall use applicable regulatory requirements in developing facility-wide permit conditions. Upon the priority industrial facility's request, the Department may undertake a voluntary, joint effort with the priority industrial facility to develop facility-wide permit conditions that are more stringent than applicable regulatory requirements.

N.J. Admin. Code § 7:1K-7.2 Designation of priority industrial facilities for participation in facility-wide permit program

(a) By September 1, 1994, the Department shall designate no fewer than 10 but not more than 15 individual priority industrial facilities to participate in the facility-wide permit program and to receive a facility-wide permit. Preference for participation in the facility-wide permit program shall be given to facilities that voluntarily participate in the program.

(b) The owner or operator of a priority industrial facility volunteering to participate in the pilot program for facility-wide permitting shall notify the Commissioner of the facility's commitment to volunteer by September 1, 1993. The facility's commitment to volunteer shall be submitted to the Commissioner in writing, shall be signed by the highest corporate officer with direct operating responsibility for the facility and shall remain in effect unless withdrawn pursuant to N.J.A.C. 7:1K-7.3(f).

(c) Upon receiving a priority industrial facility's commitment to volunteer to participate in the facility-wide permit program, the Department shall evaluate the facility's suitability for receiving a facility-wide permit and shall accept or reject the facility's volunteer commitment. By March 1, 1994, the Department shall notify the facility of its decision to either designate the facility for participation in the facility-wide permit program or reject the facility's volunteer commitment. This notice shall be in writing by certified mail. The Department's evaluation of a facility's commitment to volunteer in the facility-wide permit program shall be based, at a minimum, on the following considerations:

1. The potential for the priority industrial facility to serve as a Statewide model for multi-media pollution prevention programs;

2. The potential for a priority industrial facility that does not meet industry-wide pollution prevention goals to meet those goals through a facility-wide permit;

3. The potential for a priority industrial facility that has not met the use reduction and NPO reduction goals set forth in its Pollution Prevention Plan to meet those goals through a facility-wide permit;

4. The priority industrial facility's history of compliance or non-compliance with the terms of any permit, certificate, registration or any other relevant Department approval issued to the priority industrial facility;

5. The number and type of permits, certificates, registrations or any other relevant approvals issued by the Department and currently held by the priority industrial facility;

6. The effective date and expiration date of permits currently held by the priority industrial facility;

7. The number and quantity of hazardous substances used, generated or released by the priority industrial facility;

8. Whether anticipated changes in production activities at the priority industrial facility may best be addressed through a facility-wide permit; and

9. The nature of current and future State or Federal statutory and regulatory requirements affecting the priority industrial facility.

(d) If by March 1, 1994, the Department designates fewer than 15 facilities to participate in the facility-wide permit program from those facilities volunteering under (b) above, the Department may designate additional priority industrial facilities to participate in the facility-wide permit program and to receive a facility-wide permit. The Department's designation of additional facilities shall be based on the following considerations:

1. The potential for the priority industrial facility to serve as a Statewide model for multi-media pollution prevention programs;

2. The potential for a priority industrial facility that does not meet industry-wide pollution prevention goals to meet those goals through a facility-wide permit;

3. The potential for a priority industrial facility that has not met the use reduction and NPO reduction goals set forth in its Pollution Prevention Plan to meet those goals through a facility-wide permit;

4. The priority industrial facility's history of compliance or non-compliance with the terms of any permit, certificate, registration or any other relevant Department approval issued to the priority industrial facility;

5. The number and type of permits, certificates, registrations or any other relevant approvals issued by the Department and currently held by the priority industrial facility;

6. The effective date and expiration date of permits currently held by the priority industrial facility;

7. The number and quantity of hazardous substances used, generated or released by the priority industrial facility;

8. Whether anticipated changes in production activities at the priority industrial facility may best be addressed through a facility-wide permit; and

9. The nature of current and future State or Federal statutory and regulatory requirements affecting the priority industrial facility.

(e) By September 1, 1994, the Department shall notify each priority industrial facility which has not volunteered to participate in the facility-wide program pursuant to (b) and (c) above, but which has been designated to receive a facility-wide permit pursuant to (d) above. This notice shall be in writing, by certified mail.

(f) After each priority industrial facility participating in the facility-wide permit program has received notification of its designation to the program, the Department shall prepare and submit to the Legislature a report summarizing the designation process and the progress made to date in establishing a facility-wide permitting program.

History

• Administrative Correction to N.J.A.C. 7:1K-7.2(b).
• See: 25 New Jersey Register 1876(a).
• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-7.3 Procedures for issuing facility-wide permits

(a) The owner or operator of a priority industrial facility designated to participate in the facility-wide permit program pursuant to N.J.A.C. 7:1K-7.2 shall submit a complete facility-wide permit application to the Department by the deadline established by the Department. The Department shall establish a deadline for submittal of facility-wide permit applications by providing each industrial facility with at least 45 days advance notice by certified mail in order to enable the industrial facility to assert a confidentiality claim pursuant to N.J.A.C. 7:1K-8.2, if applicable.

(b) A complete facility-wide permit application shall consist of the following:

A complete copy of the most recent Pollution Prevention Plan prepared by the owner or operator of the priority industrial facility, subject to the confidentiality provisions of N.J.A.C. 7:1K-8 through 11; and

2. A facility-wide permit application consisting of information and data, on forms provided by or approved by the Department, for all emissions and discharges from the facility and the management of solid and hazardous wastes, including all information needed to prepare and issue permits, certificates and approvals issued by the Department pursuant to the provisions of N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; and the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., as applicable.

(c) The Department shall review the facility's Pollution Prevention Plan and facility-wide permit application to ensure compliance with all applicable requirements of N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; and the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., as applicable.

(d) After the Department determines that the facility's Pollution Prevention Plan and facility-wide permit application are administratively complete, the Department will conduct a technical review and, if necessary, provide comments to the owner or operator of the priority industrial facility within approximately 60 calendar days.

(e) The owner or operator of the priority industrial facility will have approximately 60 calendar days to submit a revised Pollution Prevention Plan and facility-wide permit application addressing the Department's technical comments.

(f) Within approximately 90 calendar days of receiving the revised Pollution Prevention Plan and facility-wide permit application from a facility under (d) above, the Department shall conduct a final administrative review of the facility-wide permit application and shall either:

Issue a draft facility-wide permit and a combined public notice in accordance with N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; and the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., as applicable; or

2. Notify the industrial facility that its facility-wide permit application has been denied.

(g) An industrial facility that volunteered to participate in the pilot facility-wide permit program pursuant to N.J.A.C. 7:1K-7.2(b) and (c) may withdraw from the pilot facility-wide program at any time up until the 30th day following its receipt of the draft facility-wide permit by submitting its decision to withdraw to the Commissioner in writing, signed by the highest corporate officer with direct operating responsibility for the industrial facility. An industrial facility that was designated by the Department for participation in the pilot facility-wide permitting program pursuant to N.J.A.C. 7:1K-7.2(d) and (e) may only withdraw from the pilot facility-wide permit program during the 30-day period following its receipt of the draft facility-wide permit, by submitting its decision to withdraw to the Commissioner in writing, signed by the highest corporate officer with direct operating responsibility for the industrial facility.

(h) The Department shall provide a minimum 45 day public comment period to receive comments from interested parties on the terms and conditions of the draft facility-wide permit.

(i) The Department may conduct a public hearing on the draft facility-wide permit if it determines that a hearing is required pursuant to N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; or the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., as applicable, or if significant public comments are received requesting that a public hearing be held.

(j) The Department will respond to all significant public comments on the draft facility-wide permit and shall issue a final facility-wide permit, if warranted, within approximately 90 calendar days after the close of the public comment period, and no later than 30 months after the effective date of this subchapter.

(k) The owner or operator of the priority industrial facility may appeal the issuance of the final facility-wide permit pursuant to the provisions of N.J.S.A. 13:1D-1 et seq.; the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.; or the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., as applicable.

(l) If, for any reason, the Department does not issue a draft or final facility-wide permit to the owner or operator of the priority industrial facility, the existing permits issued to the owner or operator of the priority industrial facility shall remain in full force and effect pursuant to applicable law.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-7.4 Reporting findings of the pilot program; potential for expanding the program

(a) By March 1, 1996, the Department shall prepare and submit to the Governor and the Legislature a report analyzing the facility-wide permit program, evaluating the ability of the Department to conduct and expand the facility-wide permit program, and proposing, if warranted, a schedule to expand the applicability of the facility-wide permit program.

(b) The Department shall not issue more than 15 facility-wide permits without specific authorization by law.

Subchapter 8 CONFIDENTIALITY CLAIMS

N.J. Admin. Code § 7:1K-8.1 Confidentiality of Pollution Prevention Plans

(a) The owner or operator of a priority industrial facility required to prepare a Pollution Prevention Plan under this chapter shall maintain a confidential copy of the industrial facility's Pollution Prevention Plan at the industrial facility for inspection by the Department. Employees of the Department are required to handle confidential information, including the confidential copy of an industrial facility's Pollution Prevention Plan, in accordance with N.J.A.C. 7:1K-11.

(b) If the Department requires a Pollution Prevention Plan to be submitted for review pursuant to N.J.A.C. 7:1K-3.9, 3.10, 3.11, 3.12 or 3.13, the owner or operator of the industrial facility may assert a confidentiality claim for information which he or she believes in good faith to be confidential information by filing a confidentiality claim in accordance with the procedure at N.J.A.C. 7:1K-8.2.

History

• Amended by R.2000 d.118, effective 3/20/2000.
• See: 31 New Jersey Register 4187(a), 32 New Jersey Register 1001(a).
• In (b), changed N.J.A.C. reference.

N.J. Admin. Code § 7:1K-8.2 Procedure for making a claim for information contained in Pollution Prevention Plans, Pollution Prevention Plan Summaries, and Pollution Prevention Plan Progress Reports

(a) Any person required to submit information to the Department under this chapter, or to allow the Department to obtain such information, which such person believes in good faith to constitute confidential information, may assert a confidentiality claim by following the procedures set forth in this subchapter.

(b) A claimant shall submit to the Department, at the address provided in N.J.A.C. 7:1K-8.4(b), a confidential copy and, upon the Department's request, a preliminary public copy of a Pollution Prevention Plan, Pollution Prevention Plan Summary, or Pollution Prevention Plan Progress Report containing assertedly confidential information. The preliminary public copy shall carry a notation stating that confidential information has been deleted. The Department may disclose the preliminary public copy to any person, without restriction or limitation.

(c) The claimant shall label the first page of the confidential copy "CONFIDENTIAL COPY." At the top of each page of the confidential copy, which page contains information that the claimant asserts is confidential information, the claimant shall place a boldface heading reading "CONFIDENTIAL". The claimant shall clearly underscore or highlight all information in the confidential copy which the claimant asserts to be confidential, in a manner which shall be clearly visible on photocopies of the confidential copy.

(d) The claimant shall seal the confidential copy in an envelope displaying the word "CONFIDENTIAL" in bold type or stamp on both sides. This envelope shall be enclosed in another envelope for transmittal to the Department. The outer envelope shall bear no markings indicating the confidential nature of the contents.

(e) The claimant shall send the package containing the confidential copy to the Department by certified mail, return receipt requested, or by other means providing a receipt for delivery.

(f) The claimant shall include in the package a written designation of a person to receive notices pursuant to N.J.A.C. 7:1K-8.3.

N.J. Admin. Code § 7:1K-8.3 Designation by claimant of an addressee for notices and inquiries

A claimant shall designate a person as the proper addressee of communications from the Department under N.J.A.C. 7:1K-8 through 11. To designate such a person, the claimant shall submit the following information to the Department in writing: the name and address of the claimant; the name, address, and telephone number of the designated person; and a request that all Department inquiries and communications (oral and written), including without limitation the inquiries and notices listed in N.J.A.C. 7:1K-8.4(a), be directed to the designee.

N.J. Admin. Code § 7:1K-8.4 Correspondence, inquiries, and notices

(a) The Department shall direct all correspondence, inquiries and notices relating to confidentiality claims under N.J.A.C. 7:1K-8 through 11 to the person designated by the claimant pursuant to N.J.A.C. 7:1K-8.3, including without limitation the following:

1. Notices requesting substantiation of claims, under N.J.A.C. 7:1K-9.2(a) 1ii;

2. Notices of denial of confidentiality claims and proposed disclosure of information, under N.J.A.C. 7:1K-9.5(a);

3. Notices of disclosure under N.J.A.C. 7:1K-10.3; and

4. Notices of proposed use of confidential information in administrative proceedings, under N.J.A.C. 7:1K-10.6.

(b) A claimant shall direct all correspondence, inquiries, notices, and submissions concerning confidentiality claims under this chapter to the Department at the following address:

Bureau of Compliance Support and Pollution Prevention

Department of Environmental Protection

Mail Code 401-04B

PO Box 420

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In the contact information in (b), substituted "Right to Know" for "Permit Coordination", changed the PO Box number from "423" to "443", changed the zip code from "08625-0423" to "08625-0443".
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

Subchapter 9 CONFIDENTIALITY DETERMINATIONS

N.J. Admin. Code § 7:1K-9.1 Time for making confidentiality determinations

(a) The Department shall make a confidentiality determination:

1. If the Department receives a request, by a person to whom the Department is restricted from disclosing confidential information pursuant to N.J.A.C. 7:1K-11, to inspect or copy records containing assertedly confidential information which is the subject of a confidentiality claim; or

2. Before taking any action which is inconsistent with the requirements for treatment of confidential information set forth in N.J.A.C. 7:1K-11.

(b) The Department may, in its discretion, make a confidentiality determination at any time.

N.J. Admin. Code § 7:1K-9.2 Notice to claimant of request for confidentiality determination

Upon receipt of a request to inspect or copy records containing information which is the subject of a claim pursuant to N.J.A.C. 7:1K-9.1(a)1, the Department shall notify the industrial facility in writing of its receipt of the request within 15 working days of receiving the request.

History

• New Rule, R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.3 Notice of initial confidentiality determination, and of requirement to submit substantiation of claim

(a) If the Department initially determines that any of the assertedly confidential information may be confidential information, the Department shall:

1. Notify each claimant who is known to have asserted a claim applicable to such information of the following:

i. That the Department is in the process of making a confidentiality determination with respect to the claimant's claim;

ii. That the claimant is required to substantiate the claim in accordance with N.J.A.C. 7:1K-9.4;

iii. The address of the office to which the claimant's substantiation must be addressed;

iv. The time allowed for submission of substantiation pursuant to N.J.A.C. 7:1K-9.5(a);

v. The method for requesting a time extension under N.J.A.C. 7:1K-9.5(b); and

vi. That the claimant's failure to furnish substantiation within the time allocated in N.J.A.C. 7:1K-9.5 shall operate as a waiver of the claimant's claim.

2. Furnish, to any requester whose request for inspection or copying of the information is pending, notice that:

i. The information which is the subject of the request may be confidential information;

ii. The Department must undertake further inquiry before granting or denying the requester's request; and

iii. After the Department has made a confidentiality determination concerning the information which is the subject of the request, the Department will grant or deny the request.

(b) The Department shall send the notice required by (a)1 and 2 above by certified mail, return receipt requested, or by other means providing a receipt for delivery.

(c) If the Department is able to determine whether all of the assertedly confidential information is or is not confidential information, without the need for submission of substantiation under N.J.A.C. 7:1K-9.4, such determination shall have the effect of a final confidentiality determination pursuant to N.J.A.C. 7:1K-9.6. The Department shall provide such notices of the determination as are required by N.J.A.C. 7:1K-9.6.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.4 Substantiation of confidentiality claims

(a) If the Department has determined that any assertedly confidential information may be confidential information, and has notified the claimant pursuant to N.J.A.C. 7:1K-9.3(a) and (b), the claimant shall substantiate the confidentiality claim by submitting information to the Department in the following areas within the time allotted by N.J.A.C. 7:1K-9.5:

1. Measures taken by the claimant to prevent disclosure of the information to others;

2. The extent to which the information has been disclosed to others, and the precautions taken to prevent further disclosure;

3. If the Department, the United States Environmental Protection Agency, or any other State or Federal agency has previously made a confidentiality determination relevant to the pending confidentiality claim, copies of all such confidentiality determinations;

4. A description of any substantial harmful effects which disclosure would have upon the claimant's competitive position, an explanation of why such harmful effects are substantial, and an explanation of the causal relationship between disclosure and such harmful effects;

5. A demonstration that the information is not readily discoverable through reverse engineering or other analytical techniques;

6. The period of time for which the claimant desires that the Department treat the assertedly confidential information as confidential information; and

7. Any other substantiation which is relevant in establishing that the assertedly confidential information is confidential information.

(b) The claimant may assert a confidentiality claim for any information submitted to the Department by the claimant as part of his or her substantiation pursuant to this subsection. If the claimant fails to assert a confidentiality claim for such information at the time of submission, the claimant shall be deemed to have waived all such claims with respect to the information.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.5 Time for submission of substantiation

(a) The claimant shall submit substantiation within 45 days after the date of the claimant's receipt of the written notice provided under N.J.A.C. 7:1K-9.3(a)1.

(b) The Department may, in its discretion, extend the time allotted for submission of substantiation pursuant to (a) above if, before the expiration of the allotted time, the claimant submits a written request for the extension of such allotted time, provided, however, that except in extraordinary circumstances, the Department shall not approve such an extension of time in connection with a request to inspect or copy assertedly confidential information pursuant to N.J.S.A. 47:1A-1 et seq. without the consent of any person whose request to inspect or copy the allegedly confidential information under N.J.S.A. 47:1A-1 et seq. is pending.

(c) If a claimant fails to submit substantiation within the time allotted pursuant to this section, the claimant shall be deemed to have waived all confidentiality claims with respect to the information for which the substantiation was required.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.6 Final confidentiality determination

(a) If, after review of all the information submitted pursuant to N.J.A.C. 7:1K-9.4, the Department determines that the assertedly confidential information is not confidential information, the Department shall take the following actions:

1. The Department shall so notify the claimant by certified mail, return receipt requested. The notice shall state the basis for the determination, that it constitutes final agency action concerning the confidentiality claim, and that the Department shall make the information available to the public on the 46th day following receipt by the claimant of the written notice. The notice shall include a copy of the final public copy to be made available to the public.

2. On or after the 46th day following receipt by the claimant of the written notice required by (a)1 above, the Department shall send written notice of the determination to any requester with a pending request to inspect or copy the information which was the subject of the confidentiality claim. The Department shall send the notice by certified mail, return receipt requested.

(b) If, after review of the substantiation submitted pursuant to N.J.A.C. 7:1K-9.4, the Department determines that the assertedly confidential information is confidential information, the Department shall treat such information as confidential information in accordance with N.J.A.C. 7:1K-11. The Department shall send written notice of the determination to the claimant and to any requester with a pending request to inspect or copy the information which was the subject of the confidentiality claim. The notice shall state the basis for the determination and that it constitutes final agency action. The Department shall send the notice by certified mail, return receipt requested.

(c) If, after review of the substantiation submitted pursuant to N.J.A.C. 7:1K-9.3, the Department determines that the claimant has made a frivolous confidentiality claim, the Department may assess a civil administrative penalty pursuant to N.J.A.C. 7:1K-12.6. The Department shall determine that a confidentiality claim is frivolous if it meets one or more of the following criteria:

1. The confidentiality claim is without any reasonable basis in fact; or

2. The confidentiality claim is clearly and substantially inconsistent with the definition of "confidential information" at N.J.A.C. 7:1K-1.5, such that the claim can not be supported by a good faith argument for treatment of the assertedly confidential information as confidential information, regardless of whether all the criteria at N.J.A.C. 7:1K-1.5 have been satisfied; or

3. The confidentiality claim is submitted for the sole purpose of concealing non-confidential information required to be disclosed pursuant to this chapter.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.7 Treatment of information pending confidentiality determination

The Department shall treat assertedly confidential information as confidential information, until the Department has made a final determination that the assertedly confidential information is not confidential information.

History

• Recodified from N.J.A.C. 7:1K-9.6 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.8 Availability of information to the public after determination that information is not confidential

If the Department determines that assertedly confidential information is not confidential information pursuant to N.J.A.C. 7:1K-9.6(a), the Department may disclose such information to any person on the date which is 14 days after the claimant's receipt of the written notice of the confidentiality determination.

History

• Amended by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.9 Preparation of final public copy

After the Department makes a final confidentiality determination that a record contains confidential information, the Department shall prepare a final public copy of the record based upon the final confidentiality determination. The Department may disclose the final public copy to any person, without restriction or limitation.

History

• Recodified from N.J.A.C. 7:1K-9.8 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.10 Class confidentiality determinations

(a) The Department may make a class confidentiality determination if the Department finds that the items of information within the class share one or more characteristics, which characteristics would cause the Department to determine consistently that such information is or is not confidential information.

(b) A class confidentiality determination shall clearly identify the class of information to which it applies. Such identification shall include a list of the common characteristics shared by all information within the class.

(c) A class confidentiality determination shall state that all of the information in the class is or is not confidential information.

History

• Recodified from N.J.A.C. 7:1K-9.9 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-9.11 Classes of information which are not confidential information

(a) Without limiting the ability of the Department to determine that information not listed in this section is not confidential information, the following types of information are not confidential information:

1. The name, address and business telephone number of a facility and of its owner or operator and the registered agent of such owner or operator;

2. The types and quantities of hazardous substances present at a facility;

3. Information contained in an administrative order or notice of civil administrative penalty assessment issued under N.J.A.C. 7:1K-3.10 or 7:1K-12;

4. Any other information required to be publicly disclosed pursuant to any other act, administrative rule, or regulation;

5. Any information for which a trade secret claim is prohibited by N.J.A.C. 7:1G-6.5; and

6. Any information submitted electronically pursuant to N.J.A.C. 7:1K-5.1 and 6.1.

History

• Recodified from N.J.A.C. 7:1K-9.10 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In (a), deleted "and" from the end of the paragraph 4, substituted "; and" for "." at the end of paragraph 5, and added 6.

Subchapter 10 DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION OR ASSERTEDLY CONFIDENTIAL INFORMATION

N.J. Admin. Code § 7:1K-10.1 Disclosure of confidential information or assertedly confidential information to other public agencies

(a) The Department may disclose confidential information or assertedly confidential information to any other State agency or to a Federal agency if:

1. The Department receives a written request for disclosure of the information from a duly authorized officer or employee of the requesting agency;

2. The Department notifies the other agency of any pending confidentiality claim concerning the requested information, or of any confidentiality determination regarding the requested information;

3. The other agency has furnished to the Department a written opinion from the agency's chief legal officer or counsel stating that under applicable law the agency has the authority to compel the person who submitted the information to the Department (or allowed the Department to obtain such information) to disclose such information to the requesting agency;

4. The other agency has adopted regulations or operates under statutory authority that will allow it to preserve confidential information or assertedly confidential information from unauthorized disclosure, and agrees in writing to refrain from disclosure and to safeguard the information in accordance with the requirements of N.J.A.C. 7:1K-11.1 and 11.2, unless:

i. The requesting agency has statutory authority both to compel production of the information and to disclose it; or

ii. The claimant has consented to disclosure of the information by the requesting agency; and

5. The requesting agency agrees not to disclose the information further unless:

i. The requesting agency has statutory authority both to compel production of the information and to make the proposed disclosure; or

ii. The claimant has consented to disclosure of the information by the requesting agency.

N.J. Admin. Code § 7:1K-10.2 Disclosure of confidential information or assertedly confidential information to contractors

(a) The Department may disclose confidential information or assertedly confidential information to a contractor, if it complies with the procedure established under (b) below, and if:

1. The Department determines that such disclosure is necessary in order for the contractor to perform the work required by the contract;

2. The contract provides that the contractor and the contractor's employees shall use the information only for the purpose of performing the duties required by the contract, shall refrain from disclosing the information to anyone other than the Department, shall store all records containing the confidential information in locked cabinets in secure rooms, shall not duplicate the information, and shall return to the Department all originals and all copies of the information (and any abstracts or extracts therefrom, or any records containing any of the information) when the confidential information is no longer necessary to enable the contractor to perform obligations under the contract, or at any time upon the request of the Department; and

3. If the claimant so requests, the contractor contracts with the claimant to refrain from further disclosure of the information.

(b) Before disclosing confidential information or assertedly confidential information to a contractor under (a) above, the Department shall notify the claimant of the proposed disclosure in writing, delivered by certified mail, return receipt requested, at least 45 days before making the disclosure. The notice shall state the information to be provided, the identity of the contractor, and the scheduled date of disclosure. If, at least three working days before the scheduled date of disclosure, the claimant delivers to the Department information sufficient to establish that the proposed disclosure would be likely to cause substantial damage either to the claimant's competitive position or to national security, the Department shall refrain from making the disclosure.

N.J. Admin. Code § 7:1K-10.3 Disclosure of confidential information or assertedly confidential information to physicians or osteopaths

(a) The Department may disclose confidential information or assertedly confidential information to a physician or osteopath when such information is needed for medical diagnosis or treatment if:

1. The physician or osteopath seeking disclosure of confidential information or assertedly confidential information for the purposes of medical diagnosis or treatment makes a written request for disclosure of the information. The written request shall concisely describe the need for the information and shall certify that the information is not available from other sources;

2. The physician or osteopath signs a written agreement with the Department providing that the physician or osteopath and his or her employees shall use the information only for the purpose of medical diagnosis or treatment, shall refrain from disclosing the information to anyone other than the Department, shall store all records containing the confidential information in locked cabinets in secure rooms, shall not duplicate the information, and shall return to the Department all originals and all copies of the information (and any abstracts or extracts therefrom, or any records containing any of the information) when the confidential information is no longer necessary for medical diagnosis or treatment; and

3. If the claimant so requests, the physician or osteopath signs a written agreement with the claimant to refrain from further disclosure of the information.

(b) Before disclosing confidential information or assertedly confidential information to a physician or osteopath under (a) above, the Department shall notify the claimant of the proposed disclosure in writing, delivered by certified mail, return receipt requested, at least 45 days before making the disclosure. The notice shall state the information to be provided, the identity of the physician or osteopath, and the scheduled date of disclosure.

N.J. Admin. Code § 7:1K-10.4 Disclosure of confidential information or assertedly confidential information for the protection of public health

(a) Notwithstanding any other provision of this chapter, the Department may disclose confidential information or assertedly confidential information to an officer or employee of the State in connection with the official duties of the officer or employee under any law for the protection of public health.

(b) The following procedure shall apply to the disclosure of information by the Department to officers or employees of the State under any law for the protection of public health:

1. The Department shall inform the claimant that the Department is considering using the information in connection with the law for the protection of public health and shall afford the claimant a reasonable time for comment;

2. The claimant shall submit comments concerning the proposed use of the information to the Department within the time allotted pursuant to (b)1 above, including comments which may support a determination that the information is not relevant to the proceeding, or that the disclosure of the information in the proceeding is not necessary to protect the public health;

3. The Department may disclose the confidential information in connection with any law for the protection of public health if, upon consideration of the comments submitted pursuant to (b)1 above, the Department determines that the information is relevant to the subject of the proceeding, that the use of the information in the proceeding will protect the public health, and that it materially impairs the protection of the public health to limit the use of the information to a manner which preserves its confidentiality.

N.J. Admin. Code § 7:1K-10.5 Notice to claimants of disclosure of confidential information or assertedly confidential information

(a) Promptly after the Department discloses confidential information or assertedly confidential information pursuant to N.J.A.C. 7:1K-10.1 through 10.4, the Department shall notify any claimant from whom the Department has obtained the information of the disclosure. Such notice shall be in writing, and shall contain the following information:

1. The date on which disclosure was made;

2. The name of the agency or other person to which the Department disclosed the information; and

3. A description of the information disclosed.

N.J. Admin. Code § 7:1K-10.6 Disclosure by consent

(a) The Department may disclose confidential information or assertedly confidential information in accordance with the written consent of the claimant.

(b) A claimant's consent to a particular disclosure shall not operate as a waiver of a confidentiality claim with regard to further disclosures, unless the authorized disclosure is of such nature that the disclosed information is no longer confidential information.

N.J. Admin. Code § 7:1K-10.7 Incorporation of confidential information or assertedly confidential information into cumulations of data

Nothing in this chapter shall be construed as prohibiting the incorporation of confidential information or assertedly confidential information into general compilations of information based on industry groups or classifications of hazardous substances which may be subject to disclosure as public records, or for conducting research and preparing reports pursuant to N.J.S.A. 13:1D-45, provided that after consultation with the claimant, the Department has determined that such disclosure is not in a form that would foreseeably allow persons, not otherwise having knowledge of such confidential information, to deduce from it confidential information or the identity of the person who supplied it to the Department.

N.J. Admin. Code § 7:1K-10.8 Hearing before disclosure of information for which a confidentiality claim has been made

(a) A claimant may request an adjudicatory hearing to contest disclosure of any information for which a confidentiality claim has been made, at any time before disclosure. The request shall be in accordance with the requirements of N.J.A.C. 7:1K-12.3.

(b) The Department may deny a request for an adjudicatory hearing under (a) above if:

1. The claimant fails to provide all information required under N.J.A.C. 7:1K-12.3(b);

2. The Department receives the request after disclosure of the assertedly confidential information occurs; or

3. The Department has been ordered to disclose the information by a court of competent jurisdiction, or by any other person or entity with the power and authority to compel disclosure.

(c) All adjudicatory hearings shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(d) At the adjudicatory hearing, the respondent shall have the burden of showing that the proposed disclosure is not in accordance with this N.J.A.C. 7:1K.

(e) Pending the completion of the adjudicatory hearing, the Department will refrain from disclosing the assertedly confidential information, unless the Department has been ordered to disclose the information by a court of competent jurisdiction, or by any other person or entity with the power and authority to compel disclosure.

Subchapter 11 TREATMENT OF CONFIDENTIAL AND ASSERTEDLY CONFIDENTIAL INFORMATION

N.J. Admin. Code § 7:1K-11.1 Nondisclosure of confidential or assertedly confidential information

Unless specifically required by any Federal or State law, statute, administrative rule, regulation, order, court order, or applicable court rule, the Department shall not disclose confidential or assertedly confidential information to any person other than as provided in N.J.A.C. 7:1K-10.

N.J. Admin. Code § 7:1K-11.2 Safeguarding of confidential or assertedly confidential information

(a) Submissions to the Department required under this chapter will be opened only by persons authorized by the Department to be engaged in administering this chapter.

(b) Only those Department employees whose activities necessitate access to information for which a confidentiality claim has been made may open any envelope which is marked "CONFIDENTIAL."

(c) The Department shall store any records containing confidential or assertedly confidential information only in locked cabinets in secure rooms; provided, however, that if such records are in a form which is not amenable to such storage, the Department shall store such records in a manner which similarly restricts access by persons to whom disclosure of the confidential information in question is restricted.

(d) The Department shall maintain a record of all persons obtaining access to confidential or assertedly confidential information, including the date and time of, and the reasons for, the access.

(e) Any records made, possessed, or controlled by the Department or its contractors, and containing confidential or assertedly confidential information, shall contain indicators identifying the confidential or assertedly confidential information.

(f) Every Department employee, representative, and contractor who has custody or possession of confidential or assertedly confidential information shall take appropriate measures to safeguard such information and to protect against its improper disclosure.

(g) Department employees, representatives and contractors are prohibited from duplicating confidential or assertedly confidential information.

N.J. Admin. Code § 7:1K-11.3 Confidentiality agreements

The provisions of this chapter shall supersede the provisions of any agreement imposing any duties of confidentiality or nondisclosure upon the Department or any employee, contractor or agent thereof. Such provisions imposing confidentiality or nondisclosure duties upon the Department or any employee, contractor or agent thereof shall be of no force or effect.

N.J. Admin. Code § 7:1K-11.4 Wrongful access or disclosure; penalties

(a) No person shall disclose, obtain or have possession of any confidential or assertedly confidential information, except as authorized by this chapter.

(b) Except in accordance with this chapter, no Department employee, representative, or contractor shall disclose any confidential or assertedly confidential information which came into his or her possession, or to which he or she gained access, by virtue of his or her official position of employment or contractual relationship with the Department. No such person shall use any such information for his or her private gain or advantage, except as permitted by a contract between such person and the Department. If a contractor discloses confidential or assertedly confidential information in violation of this chapter or of contractual provisions restricting disclosure, such disclosure shall constitute grounds for debarment or suspension as provided in N.J.A.C. 7:1D-2, Debarment, Suspension and Disqualification from Department Contracting.

(c) If the Department finds that any person has violated the provisions of this subchapter, it may:

1. Commence a civil action in Superior Court for a restraining order and an injunction barring that person from further disclosing confidential information; and/or

Pursue any other remedy available at law or equity.

(d) In addition to any other penalty that may be sought by the Department, violation of this subchapter by a Department employee shall constitute grounds for dismissal, suspension, fine or other adverse personnel action.

(e) In addition to any other penalty that may be sought by the Department, any officer or employee of the State or contractor of the State who has access to any confidential or assertedly confidential information, and who willingly and knowingly discloses the confidential or assertedly confidential information to any person not authorized to receive it, is guilty of a crime of the third degree.

(f) Use of any of the remedies specified under this section shall not preclude the use of any other remedy.

History

• Administrative change.
• See: 32 New Jersey Register 1796(a).

Subchapter 12 CIVIL ADMINISTRATIVE PENALTIES AND REQUESTS FOR ADJUDICATORY HEARINGS

N.J. Admin. Code § 7:1K-12.1 Authority, scope and purpose

(a) This subchapter governs the Department's issuance of administrative orders and the assessment and settlement of civil administrative penalties for violations of the Act. In particular, this subchapter establishes ranges of civil administrative penalties for violations of similar type, seriousness, and duration, as required by N.J.S.A. 13:1D-49(d). This subchapter also sets forth the procedures for persons requesting an adjudicatory hearing on an administrative order, notice of civil administrative penalty assessment or confidentiality determination issued under the Act or this chapter.

(b) The Department may assess a civil administrative penalty of not more than $ 15,000 for each violation of the Act.

(c) Each day during which a violation of the Act continues constitutes an additional, separate, and distinct offense.

(d) Neither the issuance of an administrative order, the assessment of a civil administrative penalty, nor the payment of any civil administrative penalty shall be deemed to affect the availability of any other enforcement provision provided for by the Act, or any other statute or administrative regulation, in connection with the violation of the Act for which the order is issued or the assessment is levied.

N.J. Admin. Code § 7:1K-12.2 Procedures for assessment and payment of civil administrative penalties

(a) In order to assess a civil administrative penalty for a violation of the Act, the Department shall, by means of an administrative order and notice of civil administrative penalty assessment, notify the violator by certified mail (return receipt requested) or by personal service. The Department may, in its discretion, assess a civil administrative penalty for more than one offense in a single administrative order and notice of civil administrative penalty assessment or in multiple administrative orders and notices of civil administrative penalty assessment. The administrative order and notice of civil administrative penalty assessment shall:

1. Identify the section of the Act, rule, administrative order, or permit violated;

2. Concisely state the facts that constitute the violation of the Act;

3. Specify the amount of the civil administrative penalty assessed; and

4. Advise the violator of the right to request an adjudicatory hearing pursuant to the procedures in N.J.A.C. 7:1K-12.3.

(b) A notice of assessment of a civil administrative penalty may be issued separately or as part of an administrative order issued pursuant to N.J.S.A. 13:1D-49(b) requiring the alleged violator to take affirmative action to comply with the Pollution Prevention Act or a rule or regulation issued pursuant to the Act.

(c) Payment of the civil administrative penalty is due upon receipt by the violator of the Department's Final Order in a contested case, or when a notice of civil administrative penalty assessment becomes a Final Order, as follows:

1. If an adjudicatory hearing is not requested pursuant to the procedures in N.J.A.C. 7:1K-12.3, a Notice of Civil Administrative Penalty Assessment becomes a Final Order on the 21st day following receipt of the Notice of Civil Administrative Penalty Assessment by the violator;

2. If an adjudicatory hearing is requested pursuant to the procedures in N.J.A.C. 7:1K-12.3 but the Department denies the hearing request, a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt by the violator of notice of such denial; or

3. If an adjudicatory hearing is requested pursuant to the procedures in N.J.A.C. 7:1K-12.3 and the Department grants the hearing request, a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt by the violator of a Final Order in a contested case.

N.J. Admin. Code § 7:1K-12.3 Procedures for requesting and conducting adjudicatory hearings

(a) To request an adjudicatory hearing to contest an administrative order, notice of civil administrative penalty assessment, or confidentiality determination issued pursuant to the Act or this chapter, the violator or claimant shall submit the information required pursuant to (b) below to the following address:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420

(b) To request an adjudicatory hearing to contest an administrative order, notice of civil administrative penalty assessment, or confidentiality determination, the violator or claimant shall submit the following information to the Department:

1. The name, address, and telephone number of the violator or claimant and its authorized representative;

2. If an administrative order or notice of civil penalty assessment is being appealed:

i. The violator's defenses to each of the Department's findings of fact in the administrative order or notice of civil administrative penalty assessment stated in short and plain terms; and

ii. An admission or denial of each of the Department's findings of fact in the administrative order or notice of civil administrative penalty assessment. If the alleged violator is without knowledge or information sufficient to form a belief as to the truth of a finding, the alleged violator shall so state and this shall have the effect of a denial. A denial shall fairly meet the substance of the findings denied. When the alleged violator intends in good faith to deny only a part or a qualification of a finding, the alleged violator shall specify so much of it as is true and material and deny only the remainder. The alleged violator may not generally deny all of the findings but shall make all denials as specific denials of designated findings. For each finding the alleged violator denies, the alleged violator shall allege the fact or facts as the alleged violator believes it or them to be;

3. If a confidentiality determination is being appealed:

i. A concise statement of each factual or legal question alleged to be at issue and its relevance to the Department's confidentiality determination; and

ii. A concise statement of the claimant's or applicant's position on each factual or legal question alleged to be at issue;

4. Information supporting the request and specific reference to or copies of other written documents relied upon to support the request;

5. An estimate of the time required for the hearing (in days and/or hours); and

6. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(c) If the Department does not receive the hearing request within 20 days after receipt by the violator of an administrative order or notice of civil administrative penalty assessment being challenged, or within 45 days after receipt by the claimant of a confidentiality determination, the Department shall deny the hearing request.

(d) If the violator or claimant fails to include all the information required by (d) above, the Department may deny the hearing request. The Department may grant the violator or claimant an additional 10 days to correct deficiencies in an incomplete adjudicatory hearing request.

(e) All adjudicatory hearings granted under the Act shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

History

• Amended by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).
• In (a), rewrote address.
• Notice of readoption with technical change.
• See: 46 N.J.R. 353(a).

N.J. Admin. Code § 7:1K-12.4 Civil administrative penalty determination-general

(a) The Department may assess a civil administrative penalty of not more than $ 5,000 for the first offense, not more than $ 10,000 for the second offense and not more than $ 15,000 for the third and each subsequent offense against each violator for each violation of the Act.

(b) Each violation of the Act constitutes a distinct and separate offense.

(c) Each day during which a violation continues constitutes an additional, separate, and distinct offense.

(d) The Department may, in its discretion, assess a civil administrative penalty on the basis of one or more of the following factors:

1. The compliance history of the violator;

2. The number, frequency and severity of the offense(s);

3. The measures taken by the violator to mitigate or remediate the effects of the current offense or to prevent future offenses;

4. The deterrent effect of the penalty; or

5. Other specific mitigating or extenuating circumstances of the violator or offense.

(e) Notwithstanding the provisions of N.J.A.C. 7:1K-12.5 through 12.7, the Department may compromise the amount of a civil administrative penalty assessed under this subchapter on the basis of one or more of the following factors:

1. The compliance history of the violator;

2. The number, frequency and severity of the offense(s);

3. The measures taken by the violator to mitigate or remediate the effects of the current offense and to prevent future offenses; or

4. Other mitigating or extenuating circumstances of the violator or the offense, documented in a manner acceptable to the Department;

5. Any other terms or conditions acceptable to the Commissioner.

(f) The Department may, in its discretion, treat an offense as a first offense solely for civil administrative penalty determination purposes, if the violator has not committed the same offense in the five years immediately preceding the date of the pending offense.

N.J. Admin. Code § 7:1K-12.5 Civil administrative penalties for submitting inaccurate or false information

(a) The Department may assess a civil administrative penalty against each violator who submits inaccurate information or who makes a false statement, representation, or certification in any application, registration, record or other document submitted or maintained under the Act or any rule, administrative order, or permit issued pursuant to the Act.

(b) The Department shall determine the amount of the civil administrative penalty for offenses described in this section based on the conduct of the violator as follows:

1. For each intentional, deliberate, purposeful, knowing or willful act or omission by the violator, the civil administrative penalty, per act or omission, shall be in an amount of $ 5,000 for the first offense, $ 10,000 for the second offense, and $ 15,000 for the third and each subsequent offense; and

2. For all other conduct, the civil administrative penalty, per act or omission, shall be in the amount of $ 1,000 for the first offense, $ 2,500 for the second offense, and $ 5,000 for the third and each subsequent offense.

(c) Penalties for false certification or false reporting may include the criminal penalties set forth at N.J.S.A. 2C:28-3.

N.J. Admin. Code § 7:1K-12.6 Civil administrative penalties for frivolous confidentiality claims

(a) The Department may assess a civil administrative penalty against each violator who submits a confidentiality claim pursuant to N.J.A.C. 7:1K-9 which is determined by the Department to be frivolous.

(b) The civil administrative penalty for offenses described in this section, per act or omission, shall be in the amount of $ 1,000 for the first offense, $ 2,500 for the second offense, and $ 5,000 for the third and each subsequent offense.

History

• New Rule, R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-12.7 Civil administrative penalties for failure to allow lawful entry and inspection

(a) The Department may assess a civil administrative penalty against each violator who refuses, inhibits or prohibits immediate lawful entry and inspection of any industrial facility by any authorized Department representative.

(b) The amount of the civil administrative penalty for offenses described in this section shall be $ 5,000 for the first offense, $ 10,000 for the second offense, and $ 15,000 for the third and each subsequent offense.

History

• Recodified from N.J.A.C. 7:1K-12.6 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Prior 7:1K-12.7, Civil administrative penalties for failure to comply, repealed.

N.J. Admin. Code § 7:1K-12.8 Civil administrative penalties for violations of rules adopted pursuant to the Act

(a) This section establishes penalties for violations of the Act and this chapter. Violations are identified as minor or non-minor in accordance with N.J.S.A. 13:1D-125 et seq.

(b) The following violations are non-minor:

1. Failure to prepare a Pollution Prevention Plan as required by N.J.A.C. 7:1K-3.1(a) through (e). The penalty for this violation shall be up to $1,000 for the first offense, up to $2,500 for the second offense, and up to $5,000 for the third offense and each subsequent offense.

2. Failure to prepare a Pollution Prevention Plan as required by N.J.A.C. 7:1K-3.7(a) every five years by July 1 beginning with the fifth year following the initial base year. The penalty for this violation shall be up to $1,000 for the first offense, up to $2,500 for the second offense, and up to $5,000 for the third offense and each subsequent offense.

3. Failure to comply with an administrative order issued pursuant N.J.A.C. 7:1K-12.2, addressing administrative completeness of a Pollution Prevention Plan, Pollution Prevention Plan summary or Pollution Prevention Plan Progress report. The penalty for this violation shall be up to $1,000 for the first offense, up to $5,000 for the second offense, and up to $10,000 for the third and each subsequent offense.

(c) The following violations are minor:

1. Failure to submit a Pollution Prevention Plan Summary as required by N.J.A.C. 7:1K-3.1(a) through (e) by July 1. If the violation is not corrected pursuant to (e) below, the penalty for this violation shall be up to $1,000 for the first offense, up to $2,500 for the second offense, and up to $5,000 for the third and each subsequent offense.

2. Failure to submit a Pollution Prevention Plan Progress Report as required by N.J.A.C. 7:1K-3.1(a) through (e) by July 1. If the violation is not corrected pursuant to (e) below, the penalty for this violation shall be up to $1,000 for the first offense, up to $2,500 for the second offense, and up to $5,000 for the third offense and each subsequent offense.

3. Failure to prepare and submit a Pollution Prevention Plan Summary as required by N.J.A.C. 7:1K-3.7(b) by July 1 beginning with the fifth year following the initial base year. If the violation is not corrected pursuant to (e) below, the penalty for this violation shall be up to $1,000 for the first offense, up to $2,500 for the second offense, and up to $5,000 for the third offense and each subsequent offense.

(d) The Department shall provide a grace period of 30 days for any violation identified as minor under (c) above, provided the following conditions are met:

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 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; and

3. The person responsible for the violation has not been identified in a previous enforcement action by the Department as responsible for the same or a substantially same violation at the same facility within the preceding 12-month period.

(e) For any violation determined to be minor under (c) and (d) above, the following provisions apply:

1. The Department shall issue a notice of violation to the person responsible for the minor violation that:

i. Identifies the condition or activity that constitutes the minor violation and the specific statutory and regulatory provision or other requirement violated; and

ii. Specifies that a penalty may be imposed unless the minor violation is corrected and compliance is achieved within the specified grace period.

2. If the person responsible for the minor violation corrects that violation and demonstrates, in accordance with (e)3 below, that compliance has been achieved within the specified grace period, the Department shall not impose a penalty for the violation, and in addition shall not consider the violation a first offense for purposes of applying the increased penalties for subsequent violations of the same provision as provided under (c) above.

3. The person responsible for a violation shall submit to the Department, before the end of the specified grace period, written information, signed by the person responsible for the minor violation, detailing the corrective action taken or compliance achieved.

4. If the person responsible for the minor violation seeks additional time beyond the specified grace period to achieve compliance, the person shall request an extension of the specified grace period. The request shall be made in writing no later than one week before the end of the specified grace period and include the anticipated time needed to achieve compliance, the specific cause or causes of the delay, and any measures taken or to be taken to minimize the time needed to achieve compliance. The Department may, at its discretion, approve in writing an extension, which shall not exceed 90 days, to accommodate the anticipated delay in achieving compliance. In exercising its discretion to approve a request for an extension, the Department may consider the following:

i. Whether the violator has taken reasonable measures to achieve compliance in a timely manner;

ii. Whether the delay has been caused by circumstances beyond the control of the violator;

iii. Whether the delay will pose a risk to the public health, safety and natural resources; and

iv. Whether the delay will materially or substantially undermine or impair the goals of the regulatory program.

5. If the person responsible for the minor violation fails to demonstrate to the Department that the violation has been corrected and compliance achieved within the specified grace period, or within the approved extension, if any, the Department may, in accordance with the provisions of this chapter, impose a penalty that is retroactive to the date the notice of violation under (e)1 above was issued.

6. The person responsible for a minor violation shall not request more than one extension of a grace period specified in a notice of violation.

History

• Repeal and New Rule, R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).
• Repeal and New Rule by R.2005 d.317, effective 9/19/2005.
• See: 37 New Jersey Register 984(a), 37 New Jersey Register 3637(c).

N.J. Admin. Code § 7:1K-12.9 Exemptions from civil administrative penalties

(a) The civil administrative penalty requirements of this subchapter do not apply to:

1. Failure of an industrial facility to meet the pollution prevention goals required by N.J.A.C. 7:1K-5.1(b)3 and 5 to be developed for the facility; and

2. Failure of an industrial facility to implement the improvements, including improvements related to the non-enforceable review criteria at N.J.A.C. 7:1K-3.10(c)2, outlined in an opinion letter issued pursuant to N.J.A.C. 7:1K-3.10.

History

• New Rule, R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-12.10 Records of assessments

(a) In order to promote consistency in the application of this subchapter, the Department shall collect and maintain a record of each assessment made pursuant to this subchapter. Such record shall be a public record and shall be kept available for public inspection pursuant to N.J.S.A. 47:1A-1 et seq.

(b) The record shall, at a minimum, include a copy of each notice and all final orders issued pursuant to N.J.A.C. 7:1K-12.2, and the terms of any compromise agreed to pursuant to N.J.A.C. 7:1K-12.4.

History

• Recodified from N.J.A.C. 7:1K-12.9 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

N.J. Admin. Code § 7:1K-12.11 Pollution Prevention Fund

The Department shall deposit all penalties collected pursuant to this subchapter into the Pollution Prevention Fund established by N.J.S.A. 13:1D-50.

History

• Recodified from N.J.A.C. 7:1K-12.10 by R.1994 d.51, effective 2/7/1994.
• See: 25 New Jersey Register 1849(a), 26 New Jersey Register 842(a).

Chapter 1L PAYMENT SCHEDULE FOR PERMIT APPLICATION FEES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:1L-1.1 Purpose and applicability

(a) This chapter institutes a system for the payment of permit application fees in installments. The amount of each installment is one-third of the total fee. The due dates for the installments are based upon the Department's completion of its duties and responsibilities at specific stages of the application review process.

(b) This chapter applies to any application for a permit for which the permit application fee is more than $1,000, except as provided in (c) and (d) below. If an applicant submits applications for more than one permit, the applicability of this chapter is based on the permit application fee for each permit, and not upon the aggregate of the permit application fees for all of the permits.

(c) This chapter does not apply to any license or certification fee.

(d) This chapter does not apply to the payment of a permit application fee if:

1. Another applicable provision of this title provides for the permit application fee to be payable in installments based on milestones in the permit process; and

2. The fee for a given milestone under that other provision of this title is less than the installment would be payable under N.J.A.C. 7:1L-2.1.

(e) This chapter does not apply to a fee for an application to renew or modify a New Jersey Pollutant Discharge Elimination System permit under N.J.A.C. 7:14A.

History

• Amended by R.1997 d.66, effective 9/2/1997.
• See: 28 New Jersey Register 242(a), 29 New Jersey Register 3817(b).
• Inserted new (c), and recodified (c) through (e) as (d) through (f).
• Amended by R.2005 d.362, effective 11/7/2005.
• See: 37 New Jersey Register 1958(a), 37 New Jersey Register 4226(a).
• Deleted former (c); recodified former (d)-(f) as (c)-(e).

N.J. Admin. Code § 7:1L-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Applicant" means the person in whose name a permit is to be issued.

"Completed application" means an application containing all of the information designated on the checklist adopted by the Department under N.J.S.A. 13:1D-101, for the class or category of permit for which an application is made.

"Department" means the Department of Environmental Protection.

"Final action" means a decision to issue a permit, deny a permit, or conditionally issue a permit.

"License or certification fee" means any fee, assessment or other charge imposed by the Department in connection with the licensing or certification of any member of a regulated profession or occupation, or any person seeking to become a member of a regulated profession or occupation.

"Member of a regulated profession or occupation" means any person subject to regulation by licensure or certification by the Department pursuant to any law of this State.

"Permit" means any permit, registration or license issued by the Department, establishing the regulatory and management requirements for an ongoing regulated activity as authorized by federal law or the following State laws, as such laws are amended and supplemented:

1. The laws governing waterfront and harbor facilities, N.J.S.A. 12:5-1 through 11;

2. The Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., including without limitation N.J.S.A. 13:1E-5 and 26;

3. The Comprehensive Regulated Medical Waste Management Act, N.J.S.A. 13:1E-48.1 through 48.25;

4. The laws governing leaf composting facilities, N.J.S.A. 13:1E-99.21a through 99.21f;

5. The Statewide Mandatory Source Separation and Recycling Act, N.J.S.A. 13:1E-99.11 through 99.39, including without limitation N.J.S.A. 13:1E-99.21a through 99.21f;

6. The Pesticide Control Act of 1971, N.J.S.A. 13:1F-1 through 18;

7. The Industrial Site Recovery Act, N.J.S.A. 13:1K-6 through 13;

8. The Toxic Catastrophe Prevention Act, N.J.S.A. 13:1K-19 through 32;

9. The Wetlands Act of 1970, N.J.S.A. 13:9A-1 through 10;

10. The Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1 through 30;

11. The Coastal Area Facility Review Act, N.J.S.A. 13:19-1 through 21;

12. The Air Pollution Control Act, N.J.S.A. 26:2C-1 through 19.5;

13. The Water Supply Management Act, N.J.S.A. 58:1A-1 through 17;

14. The laws governing well drillers and pump installers, N.J.S.A. 58:4A-5 through 28;

15. The Water Pollution Control Act, N.J.S.A. 58:10A-1 through 14.6;

16. The laws governing the underground storage of hazardous substances, N.J.S.A. 58:10A-21 through 37;

17. The Safe Drinking Water Act; N.J.S.A. 58:12A-1 through 25; and

18. The Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 through 66.

"Permit application fee" or "fee" means any fee, assessment or other charge imposed by the Department for a permit.

"Person" means any individual or entity.

Subchapter 2 PAYMENT SCHEDULES

N.J. Admin. Code § 7:1L-2.1 Payment of permit application fees in installments

(a) If the fee for a permit application is more than $ 1,000, the applicant seeking the permit may pay the fee in accordance with the schedule set forth in (a)1, 2 and 3 below:

1. One-third of the total fee at the time the applicant files the application for the permit.

2. One-third of the total fee within 20 calendar days after the date specified in the notice under N.J.A.C. 7:1L-2.2, stating that the application for the permit is a "completed application"; and

3. One-third of the total fee within 20 calendar days after the date specified in the notice under N.J.A.C. 7:1L-2.2, stating that the Department has taken final action on the permit application. The due date of this final installment may be postponed in accordance with N.J.A.C. 7:1L-2.3.

N.J. Admin. Code § 7:1L-2.2 Notice by the Department

(a) After the Department determines that an application for a permit is a "completed application," the Department shall send written notice of this determination to the applicant. In the notice, the Department shall:

1. Certify that it has completed administrative review of the application;

2. State that it has determined that the application is a "completed application";

3. State the amount of the fee installment that is due; and

4. State the date on which the fee installment is due. The due date is 20 calendar days after the date the notice is mailed to the applicant.

(b) If an application becomes a "completed application" by operation of N.J.S.A. 13:1D-30, 13:1D-102(b), or any other law that deems an application complete if the Department fails to notify the applicant of deficiencies in the application within a specified time, the Department shall send written notice to the applicant. In the notice, the Department shall:

1. Certify that the application has become a "completed application" by operation of law; and

2. State the amount of the fee installment that is due; and

3. State the date on which the fee installment is due. The due date is 20 calendar days after the date the notice is mailed to the applicant.

(c) After the Department determines the final action to be taken on a permit, the Department shall send written notice of the action to the applicant, specifying therein the date on which the action was taken. If the final action is to issue the permit or to conditionally issue a permit, the Department may satisfy this requirement by sending a copy of the permit (which may be marked "void" on one or more pages) to the applicant, and stating the amount of the fee installment that is due and the due date of the installment. If the Department does not send a copy of the permit, in the notice the Department shall:

Certify that it is taking final action on the permit;

2. Specify the action and its findings or conclusions with regard to the application;

3. State the amount of the fee installment that is due; and

4. State the date on which the fee installment is due. The due date is 20 calendar days after the date the notice is mailed to the applicant.

N.J. Admin. Code § 7:1L-2.3 Payment of fees in contested cases

(a) When an applicant appeals a decision of the Department to deny a permit or to include certain terms or conditions in a permit, and the appeal results in a contested case pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 through 21, the fee installment required under N.J.A.C. 7:1L-2.1(a)3 shall not be payable until:

1. A final decision in the contested case has been issued by the Commissioner of the Department pursuant to N.J.A.C. 1:1-18.6(a) or (c); or

2. The contested case has been concluded before the issuance of the final decision, such as through a settlement under N.J.A.C. 1:1-19.1 or a withdrawal under N.J.A.C. 1:1-19.2.

N.J. Admin. Code § 7:1L-2.4 Payment of fees when permit review is discontinued

If the Department discontinues its review of an application at the applicant's request, the applicant shall pay the Department the costs it incurred in reviewing the application before receiving the request to discontinue review. The Department shall send a written notice to the applicant, stating the amount of such costs and the date on which payment of such costs is due. The due date is 20 calendar days after the date the notice is mailed to the applicant.

N.J. Admin. Code § 7:1L-2.5 Effect of non-payment of fees

(a) The determination that an application is a "completed application" depends in part upon the submission of the requisite fee. Accordingly, if an applicant fails to pay an installment of a permit application fee when the installment is due, the application will no longer be considered a "completed application" until the installment is paid.

(b) In determining when the time allotted to the Department to approve, condition or disapprove an application for a permit under any law or regulation (including, without limitation, N.J.S.A. 13:1D-31 and 32) expires, the running of that time shall be considered suspended during the period in which an application is temporarily not considered a "completed application" pursuant to (a) above.

(c) If an applicant fails to pay an installment of a permit application fee when the installment is due, that non-payment is grounds for the Department to suspend its review of the permit until the installment is paid.

(d) If an applicant has not yet paid an installment of a permit application fee within 20 calendar days after payment was due, that non-payment is grounds for the Department to deny the application.

(e) If within 120 calendar days after a denial for non-payment under (d) above, the Department receives a written request from the applicant stating that the applicant desires to reinstate the application, then:

1. The original application will be deemed to have been resubmitted as a new application, and any time limit for reaching a decision on the application will again be allotted to the Department in full; and

2. The fees that the applicant paid in connection with the original application shall be credited toward the new application.

(f) Fees may be credited under (e)2 above only for the first resubmittal under (e)1 above.

N.J. Admin. Code § 7:1L-2.6 Permit conditioned on payment of fee

No permit issued by the Department shall become effective until the applicant pays the fee in full. After the Department receives payment in full in connection with a permit that is to be issued or conditionally issued, the Department shall notify the applicant in writing that the permit is effective. If the Department has previously sent the applicant a copy of the permit marked "void" on selected pages, the Department shall send the applicant the originals of such pages without the marking.

N.J. Admin. Code § 7:1L-2.7 Action for nonpayment

This subchapter shall not be construed to limit the Department's remedies under any applicable law or regulation in connection with an unpaid installment of a permit application fee. Such remedies may include, without limitation, the assessment of penalties and interest, and the taking of administrative or legal action to collect the unpaid installments and interest thereon.

N.J. Admin. Code § 7:1L-2.8 Reserved

History

• New Rule, R.1997 d.66, effective 9/2/1997.
• See: 28 New Jersey Register 242(a), 29 New Jersey Register 3817(b).
• Repealed by R.2005 d.362, effective 11/7/2005.
• See: 37 New Jersey Register 1958(a), 37 New Jersey Register 4226(a).
• Section was "Permits to which money-back guarantee applies; time frames".

Chapter 2 STATE PARK SERVICE CODE

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:2-1.1 Short title

The title of this chapter shall be known as the "State Park Service Code."

N.J. Admin. Code § 7:2-1.2 Scope

This chapter shall constitute the rules of the State Park Service and shall govern the use of all State parks, forests, recreation areas, historic sites, natural areas, marinas, golf courses, botanical gardens, and other lands, waters and facilities under the jurisdiction of the Department of Environmental Protection and assigned to the State Park Service in the Division of Parks and Forestry.

N.J. Admin. Code § 7:2-1.3 Construction

(a) These rules shall be liberally construed to permit the Department, the Division of Parks and Forestry, the State Park Service and its various agencies to discharge its statutory functions.

(b) The Commissioner, the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service may, in the public interest, or in an emergency, relax the application of these rules.

N.J. Admin. Code § 7:2-1.4 Practice where rules do not govern

(a) The Commissioner may rescind, amend or expand these rules from time to time, as in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

(b) The Commissioner, the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service shall exercise their authority in respect to any other matters not governed by these rules.

N.J. Admin. Code § 7:2-1.5 Relationship to Federal and State law

The provisions of this chapter are not intended to and do not relieve any person of the duty to comply with all other valid governmental regulations governing activities regulated under this chapter, including rules of the Department of Environmental Protection, and other appropriate State and Federal agencies.

N.J. Admin. Code § 7:2-1.6 Severability

If any section, subsection, provision, clause or portion of this chapter or the application thereof to any person or circumstance is adjudged invalid or unconstitutional by a court of competent jurisdiction, the remainder of this chapter or the application of such section, subsection, provision, clause or portion of this chapter to persons or circumstances, other than those which is held invalid or unenforceable, shall not be affected thereby.

N.J. Admin. Code § 7:2-1.7 Definitions

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

"ATV" means a motor vehicle, registered with the New Jersey Motor Vehicle Commission or not registered, designed to travel over any terrain, which is of a type possessing between three to six rubber tires, but shall not include golf carts.

"Bicycle" means a device upon which any person may ride propelled by human power through a belt, chain or gears.

"Boat" means an open or closed vessel or water craft propelled by human power by oars, rowing, paddling or pedaling.

"Camper" means any person in possession of a valid camping permit making use of any State Park Service camping or overnight facility.

"Camping" means the temporary placing of a tent, shelter, lean-to, sleeping bag, bedding material, or recreational mobile camping units of any type, on State Park Service property for sleeping overnight in an outdoor setting.

"Camping facility" means any facility designated by the State Park Service as a camping facility, including family campsites, wilderness campsites, group campsites, and primitive campsites.

"Closed" means a complete prohibition of access except by authorized personnel.

"Closed season" means the time during the year when fish, game, birds, or other animals, may not be captured, taken, killed or had in possession.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Designated swimming area" means any swimming pool, wading pool or the area of a natural or artificially constructed pond, lake, stream, river, bay, tidal waters, ocean or other body of fresh or salt water, which is designated, developed, maintained and operated by the State Park Service for swimming purposes together with buildings, equipment, and appurtenances, if any, and the land area used in connection therewith.

"Department" means the Department of Environmental Protection.

"Division" means the Division of Parks and Forestry.

"Facilities" means any one or the combination of all State Park Service resources designed or utilized or preserved for conservation, recreation, and environmental purposes.

"Family" means a group of related persons living in one household.

"Fire" means the phenomenon of combustion manifested in light, flame and heat.

"Initial active duty training" means basic military training, for members of the New Jersey Air National Guard, and basic combat training and advanced individual training, for members of the New Jersey Army National Guard.

"Law enforcement personnel" means a State Park Police Officer, State Park Police Sergeant, State Park Police Lieutenant or other State Park Service personnel vested with law enforcement authority and empowered to warn, cite and/or arrest.

"Mobile sport fishing vehicle" means a two-axle, four-wheel drive passenger motor vehicle, having tires no larger than 40 inches in overall diameter, designed to be licensed and operated on the public roadways and highways of the State and capable of four-wheel drive operation when off the public roads on the beach. ATVs and trailers-in-tow are specifically excluded from this definition.

"Motor vehicle" means any vehicle propelled other than by muscular power, except motorized bicycles, motorized scooters, and vehicles that run only upon rails or tracks.

"Motorized bicycle" means a pedal bicycle having a helper motor characterized in that either the maximum piston displacement is less than 50 cubic centimeters (cc), or said motor is rated at no more than 1.5 brake horsepower or is powered by an electric drive motor and said bicycle is capable of a maximum speed of no more than 25 miles per hour on a flat surface.

"Motorized scooter" means a miniature vehicle propelled other than by muscular power and includes, but is not limited to, pocket bikes, super pocket bikes, scooters, mini-scooters, sport scooters, mini choppers, mini motorcycles, motorized skateboards, and other vehicles with motors not manufactured in compliance with Federal Motor Vehicle Safety Standards and which have no permanent Federal Safety Certification stickers affixed to the vehicle by the original manufacturer. This term shall not include electric personal assistive mobility devices, motorized bicycles, or low-speed vehicles, or motorized wheelchairs, mobility scooters, or similar mobility assisting devices used by persons with physical disabilities or persons whose ambulatory mobility has been impaired by age or illness.

"Motorized skateboard" means a skateboard that is propelled otherwise than by muscular power.

"Off-road vehicle" means any motorized vehicle with two or more wheels or tracks that is capable of being operated off of improved and maintained roads including, but not limited to, motorcycles as defined at N.J.S.A. 39:1-1 et seq., Motor Vehicles and Traffic Regulation, snowmobiles, and all-terrain vehicles, and dirt bikes as defined at N.J.S.A. 13:1L-1 et seq., Acquisition, Construction and Management of State Parks and Forests. A motorcycle that is registered, insured, authorized under N.J.S.A. 39:3-1 et seq. to operate on public roadways in the State, and ridden by a licensed operator is not included in this definition.

"Open fire" means any fire built for cooking or recreational purposes on State Park Service property, outside the confines of a structure, or vehicle, which cannot be immediately shut off.

"Open season" means the time during the year when fish, game, birds, or other animals may be captured, taken, killed or had in possession.

"Overnight facilities" means any permanent cabin, shelter, lean-to, lodge or other State Park Service building or structure designated by the State Park Service for overnight use by the general public.

"Oversized vehicle" means a single vehicle or combination of vehicles and trailers that will not fit into a 10 feet x 20 feet parking space. This includes, for example, recreational camping vehicles, and vehicles towing trailers or other vehicles.

"Permission" means the written or verbal authority to engage in a use given by a person lawfully designated by the Director to grant such authority.

"Permit" means a properly executed document approved by the State Park Service authorizing a specific activity including, but not limited to, a special use permit and camping permit.

"Person" means any corporation, company, club, firm, association, society, partnership, joint stock company, governmental agency as well as an individual.

"Pet" means any mammal, bird, reptile or amphibian, kept for pleasure, not for utility. "Pet" does not include a service animal.

"Power boats" means a vessel or water craft of any type temporarily or permanently equipped with a motor.

"Public use" means a use or right of use available to the general public or some portion thereof for conservation and recreation purposes.

"Sailboat" means any boat whose main source of propulsion is the natural elements (wind).

"Service animal" means a guide dog, signal dog or other animal individually trained to provide assistance to an individual with a disability.

"Signs" means any object, device, display or structure, or part thereof, situated outdoors or indoors, which is used to advertise, identify, instruct, display, direct, or attract attention to an object, person, institution, organization, business, product, service, event or location by any means, including words, letters, figures, designs, symbols, fixtures, colors, illumination, or projected images.

"Snowmobile" means any motor vehicle designed primarily to travel over ice or snow, or a motor vehicle which uses sled-type runners, skis, an endless belt, treads, cleats, or any combination of those or other similar means of contact with the surface upon which it is operated, but does not include any farm tractor, highway or other construction equipment or any military vehicle.

"Special event" means an organized race, exhibition, demonstration or activity of limited duration, which is conducted according to an approved prearranged schedule, and which may be subject to a permit.

"State" means the State of New Jersey.

"State Park" means all State owned or leased lands, waters and facilities administered by the State Park Service including but not limited to, parks, forests, recreational areas, natural areas, marinas, golf courses, botanical gardens, and historic sites, but not including wildlife management areas or reservoir lands.

"State Park Service" means the agency within the Division of Parks and Forestry responsible for planning, designing, developing, operating, and managing State Parks for public recreation, conservation and interpretation.

"Superintendent" means the supervisory official who directs the administration, operation, safety, maintenance and development of a State park, forest, recreation area, historic site, natural area, marina, golf course, botanical garden, and other land, water and facility under the jurisdiction of the Department of Environmental Protection and assigned to the State Park Service.

"Veteran" means any resident of the State of New Jersey who has been honorably discharged or released under honorable circumstances from active service in any branch of the armed forces of the United States, or any honorably discharged member of the American Merchant Marine who served during World War II and is declared by the United States Department of Defense to be eligible for Federal veterans' benefits.

"Veterans' organization" means the American Legion, Veterans of Foreign Wars, or other veterans' organizations chartered under Federal law, or any service foundation of such an organization recognized in its bylaws.

"Vessel" means a boat or powerboat or personal watercraft, other than a seaplane, used or capable of being used on the water.

"Visitor" means any person entering with permission upon State-owned property or a facility administered by the State Park Service. This definition shall not include an employee or volunteer in the course of his or her duties, or a camper.

"Waters" means all waters within the jurisdiction of the State Park Service, both tidal and non-tidal, and the marginal sea adjacent to State Park Service property.

"Yurt" means a circular tent built on a wood frame, with wood floors, a deck and a skylight.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote definitions "ATV", "Family" and "Permit"; in definition "Bicycle", deleted ", and having either two or three wheels in a tandem or tricycle arrangement" from the end; in definition "Boat", substituted "an open or closed" for "a small open"; added definitions "Camper", "Camping facility", "Law enforcement personnel", "Pet", "Service animal", "Superintendent", "Visitor" and "Yurt"; substituted definition "Designated swimming area" for definition "Designated bathing area"; in definition "Designated swimming area", deleted "bathing and" preceding "swimming purposes"; in definition "Facilities", substituted "any one or the" for "the" and inserted "or preserved"; substituted definition "Motorized bicycle" for definition "Motorized bicycles" and rewrote the definition; deleted definition "Officer-in-charge"; in definition "Sailboat", substituted "main" for "sole"; substituted definition "Special event" for definition "Special event (motor vehicle)" and rewrote the definition; and in definition "Vessel", inserted "powerboat or personal" and deleted "as a means of transportation" following "being used".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 45 N.J.R. 1937(a), 46 N.J.R. 335(b).
• Added definitions "Initial active duty training", "Motorized scooter", "Motorized skateboard", "Off-road vehicle", "Oversized vehicle", "Veteran" and "Veterans' organization"; and rewrote definitions "Law enforcement personnel", "Mobile sport fishing vehicle", "Motor vehicle" and "Motorized bicycle".

Subchapter 2 GENERAL USE

N.J. Admin. Code § 7:2-2.1 Purpose/powers

(a) The rules of the State Park Service are essential for the protection of the natural and historical resources and improvements thereon and for the safety, protection and general welfare of visitors and personnel on properties under the jurisdiction of the State Park Service.

(b) Failure or refusal by any visitor to obey the provisions of this chapter or any other applicable State law shall be sufficient cause for removal and/or prosecution by duly authorized personnel of the State Park Service.

History

• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Deleted (c).

N.J. Admin. Code § 7:2-2.2 Designation of land use

The State Park Service shall designate or direct any and all recreational or other use on its lands and waters and within its facilities to such specific areas or locations within or upon said land, waters, and facilities as will be in the best interest of conservation, recreation, preservation and management of the natural and historic resources and the health, safety, and welfare of all persons concerned.

N.J. Admin. Code § 7:2-2.3 Limitation or closing of land and water use

The Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service may limit or close to the public use, specific areas, lands, waters and facilities under its jurisdiction and control as part of a State Park whenever such action is deemed necessary for proper management and operation and/or in the best interest of health, safety and the general welfare of the public.

N.J. Admin. Code § 7:2-2.4 Posting, selling and soliciting

A person shall not post signs or notices, distribute advertisements, beg, solicit, sell or attempt to commit such acts on State Park Service property without the written permission of the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service or their designee.

N.J. Admin. Code § 7:2-2.5 Commercial use

A person shall not engage in a commercial enterprise or activity on lands and waters under the jurisdiction of the State Park Service without a permit issued by the State Park Service or pursuant to a contract or lease entered into with the Department. A person to whom such a permit has been issued shall keep a copy of the permit on his or her person, available for inspection, while engaging in the enterprise or activity that is the subject of the permit.

History

• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Inserted "a" preceding "commercial", inserted the last sentence, and substituted "or activity" for "and activities".

N.J. Admin. Code § 7:2-2.6 Alcoholic beverages prohibited

A person shall not possess and/or consume alcoholic beverages on lands and waters under the jurisdiction of the State Park Service except where the sale, use or possession is specifically approved by the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

N.J. Admin. Code § 7:2-2.7 Dumping, littering and garbage

(a) A person shall not deposit, dump or cause to be deposited or dumped any litter, trash, refuse, garbage, bottles, pollutants, or any other substances or liquids:

1. On the lands under the jurisdiction of the State Park Service; or

2. From lands or vessels on waters under the jurisdiction or control of the State Park Service.

(b) Every person shall place litter in the proper refuse or recycle containers provided.

(c) Garbage, sewage, refuse or waste, including fish or animal parts, shall be left only in the approved containers provided or removed from the area.

(d) Authorized State Park Service waste containers provided are solely for the benefit of the park user, and shall not be used for the deposit of waste or refuse generated in the home, business, or by commercial activities.

(e) A person shall not deposit or dump refuse in water fountains, or the plumbing fixtures or vaults of a toilet facility.

(f) A person shall not drain fluids or dump sewage waste or refuse from a trailer or other vehicle except in facilities provided for such purpose and then in accordance with posted instructions.

N.J. Admin. Code § 7:2-2.8 Pets

(a) Except as provided in N.J.A.C. 7:2-2.9, Service animals and hunting dogs, and (b) below, all pets are prohibited from buildings, swimming beaches, swimming waters, camping and overnight facilities other than those designated as pet friendly, golf courses, and botanical gardens.

(b) Pets are allowed at camping areas and overnight facilities designated as pet friendly, provided the owner complies with (c) below.

(c) Except as provided in (d) below and N.J.A.C. 7:2-2.9, the owner or any pet shall keep the pet caged or held on a leash (maximum length - six feet) and under the immediate control of the owner at all times.

(d) Where allowed in areas not listed in (a) above, the pet does not have to be caged or held on a leash while on a vessel on waters under the jurisdiction of the State Park Service but shall be under the immediate control of the owner at all times.

(e) The owner shall be responsible for the pet's behavior. The owner shall be strictly liable for any nuisance, noise, damage or injury caused by the pet.

(f) The owner shall be responsible for the prompt and sanitary disposal of the pet's waste.

(g) The term "owner" as used in this section refers to the person that is responsible for the care of the pet or that physically has control of the pet on or within the State Park Service jurisdiction.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Furred animals and pets". In (a), deleted "furred animals or other" preceding "pets", and substituted "swimming" for "bathing" two times; in (b), deleted "furred animal or" preceding "pet" two times; in (c), substituted "the" for "any furred animal or" preceding "pet"; in (d), deleted "animal's or" preceding "pet's behavior"; and substituted "the pet" for "furred animals or pets"; in (e), deleted "animal's or" preceding "pet's"; and in (f), deleted "animal or" preceding "pet" two times.
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote the section.

N.J. Admin. Code § 7:2-2.9 Service animals and hunting dogs

(a) Service animals are permitted in any location where their presence is necessary to perform the duty for which they are trained.

(b) Dogs used while hunting during open season, or while used in field trials in accordance with New Jersey fish, game and wildlife regulations, are exempt from the leashing requirement in N.J.A.C. 7:2-2.8(c).

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Seeing eye, companion and hunting dogs". In (a), substituted "Service animals" for "Seeing eye dogs and companion dogs for the hearing impaired".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (b), updated the N.J.A.C. reference.

N.J. Admin. Code § 7:2-2.10 Damage to property/tampering

(a) A person shall not abuse, mutilate, injure, destroy, move or remove any plant or animal or natural resource on lands and water under the jurisdiction or control of the State Park Service without having first obtained the permission of the Superintendent or designee. Authorized fish, game and wildlife activities excepted.

(b) A person shall not deface, damage, move or remove any furniture, equipment, structure, or physical feature of any kind on lands and waters under the jurisdiction or control of the State Park Service without the permission of the Superintendent or designee.

(c) A person shall not dig up, deface, or remove any soil, rock, historic or fossil materials or artifacts without written permission of the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

(d) A person shall not disturb, remove, damage, destroy or interfere with the pumps, pipes, gates, wires, dams, works and equipment of the State Park Service incident to the flow of water.

(e) An unauthorized person shall not open or enter any manhole or confined space without the specific approval of the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a) and (e), substituted "Superintendent or designee" for "area Officer-in-Charge"; and in (b) substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-2.11 Conduct

(a) A person shall not engage in conduct or use language which disrupts, interferes with, is unduly annoying to or prevents the enjoyment or maintenance of State Park Service lands or waters by other visitors or State Park Service personnel.

(b) A person shall not harass livestock, wildlife, or animals lawfully allowed on State Park Service property.

(c) A person shall not use or operate any noise producing machine, vehicle, device, or instrument in a manner that in the judgment of the Superintendent or designee, or designated law enforcement personnel, is disturbing to other park visitors, campers or employees. In camping and overnight facilities, the hours of 10:00 P.M. to 6:00 A.M. are designated "quiet hours."

(d) A person shall not block, obstruct or interfere with vehicular or pedestrian traffic on any road, parking area, trail, walkway, pathway, or common area.

(e) A person shall not occupy or interfere with access to any structure, office, lavatory, or other facility in a manner which interferes with the intended use or maintenance of such structure or facility by visitors or employees.

(f) A person shall not use a public address system on State Park Service property without the permission of the Superintendent or designee.

(g) A person shall not smoke in areas where smoking is prohibited by posted regulations.

(h) A person shall not use threatening, abusive, boisterous, or insulting language or use indecent gestures towards another person on State Park Service property.

(i) A person shall not play a radio, television, stereophonic systems, musical instrument or other noise producing device in areas posted as "quiet zones."

(j) A person shall not play any audio device including radios, televisions, stereophonic systems or musical instruments when audible beyond their immediate vicinity to the annoyance of others. Consideration shall be given to the nature and purpose of the actor's conduct, impact on others, location and any other factor which would govern the actions of a reasonably prudent person under the circumstances.

(k) A person shall not throw stones, breakable articles or other missiles which might endanger others.

( l ) A person shall not spit on walks, sidewalks, paths and structures of any type.

(m) A person shall not loiter in or about any comfort station or other public structure.

(n) A person shall not engage in fighting or other violent conduct which would threaten the well-being and tranquility of the public or State Park Service employees.

( o ) A person shall not enter or remain in any State Park Service area between the daily closing and opening time as posted, except for authorized activities, which include, but are not limited to, authorized fish, game, and wildlife activities such as hunting, fishing, and trapping.

(p) No person shall, by threat, menace, or in any other manner attempt to obstruct, deter, or interfere with State Park Service employees or law enforcement personnel who are performing their duty.

(q) No person shall intentionally create a false public alarm by any action, utterance, or deed that results in public inconvenience or panic, or results in a response by emergency service personnel.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c), substituted "Superintendent or designee" for "Officer-in-Charge", inserted ", campers" and "camping and" and deleted "and campsites" following "facilities"; and in (f), substituted "Superintendent or designee" for "Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote ( o); and added (p) and (q).

N.J. Admin. Code § 7:2-2.12 Fires, stoves and lanterns

(a) A person shall not start or maintain any open fire except for small handwarming fires in areas designated for ice fishing under N.J.A.C. 7:2-2.18(e), on any lands or frozen waters under the jurisdiction of the State Park Service unless specific approval is given by the Superintendent or designee. Such approval may include conditions limiting the hours, location, and types of fuel to be used. Small handwarming fires shall be allowed in designated ice fishing areas subject to conditions posted by the State Park Service.

(b) All types of fire may be prohibited during periods of high forest fire danger, as determined by the State Forest Fire Warden or by Executive Order of the Governor.

(c) Lighting, tending or using a fire, stove or lantern in a manner that threatens, causes damage to or results in the burning of property, park resources or creates a public safety hazard is prohibited.

(d) In camping and overnight facilities and in picnic areas, wood fires shall be lighted only in an established place constructed for the convenience of the visitor or camper, except when otherwise authorized by the Superintendent or designee or posted sign.

(e) Campers and visitors may use dead fallen timber for fuel when authorized by the Superintendent or designee.

(f) For cooking purposes, portable charcoal grills, gasoline, kerosene, or propane gas stoves may be used in camping overnight facilities and picnic areas, unless otherwise posted or directed by the Superintendent or designee.

(g) Live fires of any kind shall not be left unattended. All charcoal and wood fires shall be extinguished and cool to the touch before being left unattended.

(h) A person shall not burn litter, trash, refuse, garbage, pollutants or, except as provided at (d), (e) and (f) above, any other substance or liquids on the lands and waters of the State Park Service without specific approval of the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or" for "Officer-in-Charge or his or her"; in (d), substituted "In camping and" for "On campsites, in", "visitor or camper" for "visitors" and "Superintendent or designee" for "area Officer-in-Charge"; in (e) and (f), substituted "Superintendent or designee" for "Officer-in-Charge"; and in (h), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (g), substituted "fires of any kind" for "charcoal fires", and inserted "and wood fires".
• Substituted "Superintendent or designee" for "Officer-in-Charge", and substituted "A permit" for "Permits".

N.J. Admin. Code § 7:2-2.13 Posted signs; issued permits; verbal instructions

(a) A person shall not make use of the lands, waters, conveniences and facilities under the jurisdiction of the State Park Service contrary to posted signs, issued permits, leases or contracts, and written or verbal instructions.

(b) A person shall not enter designated restricted areas declared or posted "closed," "keep-out," "restricted area" or other verbal or posted warning.

N.J. Admin. Code § 7:2-2.14 Changing clothes; nudity

(a) All persons on State Park Service property shall be clothed sufficiently to conform with current commonly accepted standards of dress or recreational wearing apparel.

(b) A person shall not change clothes or disrobe except in the privacy of authorized changing areas, bathhouses, dressing rooms or such other facilities or private areas specifically designated for such purpose.

(c) A person shall not be nude in public on State Park Service property except in the privacy of designated changing areas, bathhouses, dressing rooms or such other private facilities and personal areas specifically designed or designated to allow this activity incidental to washing, showering, changing clothing or personal care.

N.J. Admin. Code § 7:2-2.15 Military use

(a) All use of lands and waters, under the jurisdiction of the State Park Service, for military maneuvers is prohibited except by specifically written authorization of the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

(b) Specific written authorization may include designated types of use permitted and may prohibit the use of all live or blank ammunition and pyrotechnics of any type.

N.J. Admin. Code § 7:2-2.16 Metal detectors

A person shall not use metal detectors or similar devices without a permit issued by the Superintendent or designee. The permit may limit the location, hours, and days of use. A permit will not be issued for use in areas of significant historical or other value, or where such use would be incompatible with protection of the resource and/or interfere with public use of the facility.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge", and substituted "A permit" for "Permits".

N.J. Admin. Code § 7:2-2.17 Target practice, firearms, and fireworks

(a) A person shall not engage in target practice with any type firearm or bow and arrow on State Park Service property, except with written permission of the Director of the Division of Parks and Forestry or Assistant Director of the Division for the State Park Service.

(b) A person shall not possess or discharge any firearm, pellet gun, paint gun, air soft gun, bow and arrow, slingshot or other weapon capable of injuring persons or wildlife while on State Park Service property without the specific approval of the Superintendent or designee. Hunters in compliance with the rules of the Division of Fish, Game and Wildlife and this chapter are excepted.

(c) A person shall not possess, or discharge or cause to be discharged any fireworks, firecrackers, explosives, torpedoes, rockets, or other substances which could be harmful to persons without the specific approval of the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Section was "Target practice; firearms; fireworks". In (b), inserted "paint gun, air soft gun,".

N.J. Admin. Code § 7:2-2.18 Restrictions on hunting, fishing, and trapping

(a) A person shall not hunt, fish and/or trap, except on specifically designated lands and waters of the State Park Service. All such use shall comply with the Game Code, N.J.A.C. 7:25-5, and the Fish Code, N.J.A.C. 7:25-6, now in effect or as may subsequently be amended or changed.

(b) A person shall not hunt with a rifle. Hunting with a muzzle loading rifle shall be limited to the prescribed firearm deer season only or any additional special firearm deer season. Superintendents or designees are authorized to allow squirrel and woodchuck hunting with muzzle loaders as conditions of safety warrant in accordance with the Game Code, N.J.A.C. 7:25-5, now in effect or as may subsequently be amended or changed.

(c) The building, erecting, use of or hunting from a permanent type tree stand or hunting blind is prohibited.

(d) Hunting from portable, temporary hunting tree stands or hunting blinds is permitted. However, the hunter using the portable temporary hunting tree stand or hunting blind shall remove it immediately after use.

(e) A person shall not ice fish except in areas specifically approved by the Superintendent or designee.

(f) Approved ice fishing shall be in compliance with the provisions of the Fish Code, N.J.A.C. 7:25-6, now in effect or as may subsequently be amended or changed.

(g) Spear fishing is prohibited in all waters under the jurisdiction or control of the State Park Service.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendents or designees" for "Area Officers-in-Charge"; and in (e), substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-2.19 Indecency; immorality; profanity

(a) Indecent exposure by any male or female of their genitals, pubic regions, buttocks or the female breast(s) where they may be seen by others is prohibited.

(b) Urinating or defecating in any area other than places designated for such purposes is prohibited.

(c) Addressing, soliciting or attempting to make the acquaintance of another person for immoral or indecent purposes is prohibited.

(d) The use of profanity and indecent language within hearing of another person or persons is prohibited.

N.J. Admin. Code § 7:2-2.20 Swimming areas

(a) A person shall not swim or bathe in waters under the jurisdiction of the State Park Service from land comprising part of a State Park and administered for public recreation and/or conservation purposes except in designated swimming areas open and staffed to allow this activity.

(b) Designated swimming areas shall have posted hours of operation and a person shall not use a designated swimming area contrary to posted regulations.

(c) A person shall not dive head first into any of the waters or pools under the jurisdiction or control of the State Park Service except in designated diving areas posted for this purpose.

(d) A person shall not intentionally give or transmit a false signal or false alarm of drowning in any water area or pool under the jurisdiction or control of the State Park Service.

(e) No motorized vehicles except emergency, maintenance, or law enforcement vehicles, shall be permitted in designated swimming areas during the hours of operation posted under (b) above.

(f) A person shall not use, operate or bring into a designated swimming area any inflatables or floating devices such as rubber innertubes, rubber crafts, surfboards, surfmats, buoys, kites, experimental crafts or any other floating device without the approval of the Superintendent or his or her lifeguard designees. United States Coast Guard approved Personal Floatation Devices (PFDs) are excepted.

(g) The Superintendent or designee may authorize the temporary use of certain floatation devices on occasion where the use is deemed safe, or during special events, games, tests, experiments or to accommodate the handicapped.

(h) A person shall not use land that does not comprise part of a State Park or is not administered by the State Park Service for public recreation or conservation purposes bordering waters under the jurisdiction of the State Park Service for swimming or bathing on a commercial or membership basis without first obtaining the written approval of the State Park Service.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Swimming/bathing areas". Substituted "swimming" for "bathing" throughout; in (g), substituted "Superintendent" for "area Officer-in-Charge"; and in (h), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Deleted former (c); and recodified former (d) through (i) as (c) through (h).

N.J. Admin. Code § 7:2-2.21 Horseback riding

(a) A person shall not ride horseback on property under the jurisdiction of the State Park Service except on designated trails and in areas where horseback riding is allowed.

(b) A horse shall not be hitched or confined in a manner that may cause damage to any tree, shrub, improvement or structure.

N.J. Admin. Code § 7:2-2.22 Restricted recreational activities

(a) A person shall not engage in the following recreational activities on State Park Service lands and waters without specific approval of the Assistant Director of the State Park Service, or the Regional Superintendent or their designee:

1. Parachuting;

2. Hot air ballooning;

3. Hang gliding;

4. Musketry, flint-lock or black powder shooting;

5. Spelunking;

6. Rappelling;

7. Operating remote controlled model planes, boats, cars, or other mechanical devices;

8. Ice sailing/ice boating except on Lake Hopatcong and Greenwood Lake;

9. Rocketry;

10. Archeological, geological, botanical, zoological, or paleontological expeditions;

11. Paragliding;

Parasailing; or

13. Helicopter operations.

(b) All individuals and groups involved in recreational activities on State Park Service property are subject to the rules and regulations of the State Park Service, N.J.A.C. 7:2, and may be further restricted by the applicable rules and regulations of the Natural Areas System, N.J.A.C. 7:5A, the New Jersey Water Supply Authority, N.J.A.C. 7:11, and the Division of Fish, Game and Wildlife, N.J.A.C. 7:25.

(c) Activities listed in (a) above are not all inclusive. The Assistant Director of the Division for the State Park Service or the Regional Superintendent or their designee must approve any other activity not specifically regulated.

History

• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (a)6, substituted "Rappelling" for "Rapelling"; in (a)9, deleted "or" from the end; in (a)10, substituted a semicolon for a period at the end; and added (a)11 through (a)13.

N.J. Admin. Code § 7:2-2.23 Lost articles

All articles found shall be turned over to the Superintendent or designee. Receipts shall be issued and the article shall be returned to the finder at the end of 90 days if the owner has not claimed the article. Articles not claimed shall be disposed of in accordance with established State Park Service policy. The State Park Service policy for the disposal of unclaimed articles shall be posted at each State Park.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or" for "area Officer-in-Charge or his or her".

N.J. Admin. Code § 7:2-2.24 Winter activities restrictions

(a) Skiing, snowshoeing, ice skating, sledding, innertubing, tobogganing, dog sledding and similar winter sports are prohibited on park roads, and in parking areas open to motor vehicle traffic.

(b) Activities listed in (a) above may be approved in areas specifically designated by the Superintendent or designee.

(c) The towing of persons on skis, sleds or other sliding devices by motor vehicle or snowmobile is prohibited.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-2.25 Bicycles, roller skates, and skateboards

(a) Bicycle riding is allowed and encouraged on all established State Park Service roads, and routes or paths designated for such use, unless restricted by posted signs.

(b) Bicycles and riders shall comply with all applicable New Jersey motor vehicle and traffic laws.

(c) Bicycle riders shall ride as near to the right side of the roadway as practicable.

(d) Persons riding bicycles on a State Park Service road may travel no more than two abreast when traffic is not impeded, but otherwise shall ride in single file except on paths set aside for exclusive bicycle use.

(e) A person riding upon any bicycle shall not attach the bicycle or himself to a motor vehicle or motorized bicycle.

(f) A person shall not practice any tricks or stunt riding on a State Park Service roadway.

(g) Bicycle riders shall not ride other than upon or astride a permanent and regular seat attached to the bike.

(h) A bicycle shall not be used to carry more persons at one time than the number for which it is designed and equipped.

(i) Bicycles shall be equipped with brake and horn or bell.

(j) When used at night or during periods of low visibility, a bicycle shall emit lights front and rear in accordance with motor vehicle and traffic laws.

(k) Roller skates and skateboards are restricted to areas specifically designated by the Superintendent or designee. The use of roller skates and skateboards on State Park Service roads and parking lots is prohibited.

( l ) Bicycles are prohibited on historic sites, walkways, natural trails and hiking trails.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (k), substituted "Superintendent or designee" for "Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (f), substituted "stunt" for "fancy".

Subchapter 3 MOTORIZED VEHICLES

N.J. Admin. Code § 7:2-3.1 Identification and license

(a) A person shall not operate any motor vehicle on lands under the jurisdiction of the State Park Service or on established roads under the control of the State Park Service unless the vehicle is properly licensed and registered before it is operated.

(b) A person shall not operate any motor vehicle on lands under the jurisdiction of the State Park Service unless the operator of the motor vehicle shall have in his or her possession a valid operator's license and other documentation required by the New Jersey Division of Motor Vehicles.

N.J. Admin. Code § 7:2-3.2 Unauthorized motor vehicle use

(a) A person shall not operate any motorized vehicle which does not require licensing and registration by the New Jersey Division of Motor Vehicles, on lands and waters under the jurisdiction of the State Park Service unless a permit for operation of said motorized vehicle is issued by the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

(b) Any permit granted pursuant to (a) above shall include designated hours and specific locations for operation.

(c) A person shall not operate a motor vehicle upon the ice-covered waters under the jurisdiction of the State Park Service at any time except for the operation of snowmobiles on routes designated by the State Park Service.

(d) A person shall not operate a motor vehicle upon State Park Service property while knowingly allowing any person riding upon any bicycle, coaster, skates, sled, skis, sliding device or toy vehicle to attach the same or himself to the motor vehicle.

(e) Except in accordance with N.J.A.C. 7:2-3.4(d), a person shall not operate or permit the operation on or over lands or in or on waters under the jurisdiction of the State Park Service of a motorized vehicle likely to cause damage or injury to persons, wildlife, or property within the jurisdiction of the State Park Service. Such vehicles include, but are not limited to, a motor vehicle having more than two axles or having tires larger than 40 inches in overall diameter, an ATV, or an unlicensed or unregistered motor vehicle.

History

• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 45 N.J.R. 1937(a), 46 N.J.R. 335(b).
• Added (e).

N.J. Admin. Code § 7:2-3.3 Conformance to State laws

All motor vehicles operated on lands under the jurisdiction of the State Park Service shall be subject to Motor Vehicle Laws of the State of New Jersey, N.J.S.A. 39-1 et seq., all rules promulgated pursuant thereto, and this chapter.

N.J. Admin. Code § 7:2-3.4 Restrictions on operation of motor vehicles

(a) A person shall not operate any motor vehicle on or over any lands under the jurisdiction of the State Park Service except on established public roads or in designated parking areas unless allowed otherwise by posted signs or this subchapter.

(b) A person shall not operate a motor vehicle at any time on or over any road designated closed by signs or barriers.

(c) A person shall not operate a motor vehicle on or over any cultivated or planted area, transmission line, survey line or in the woods, swamps, bogs, wetlands or fields unless a permit for said specific activity and location is issued by the Superintendent or designee.

(d) A person shall not operate an off-road vehicle on or over the lands and waters under the jurisdiction of the State Park Service at any time except that, when an area is so designated by the State Park Service, permits may be granted for organized "special events" to operate on a pre-established course under prescribed conditions.

(e) A person or organization shall not conduct a motor vehicle race, rally, exhibition or demonstration of any type on State Park Service lands and waters without a permit issued by the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c), substituted "Superintendent or designee" for "area Officer-in-Charge"; and in (e), substituted "Superintendent or designee" for "Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Section was "Restriction on operation of motor vehicles". In (d), substituted "off-road" for "all-terrain vehicle, dirt bike, trail bike, or 'off-road' motor".

N.J. Admin. Code § 7:2-3.5 Snowmobiles

(a) All use of snowmobiles on lands and frozen waters under the jurisdiction of the State Park Service shall be in conformance with N.J.S.A. 39:3C-1 et seq., the Motor Vehicle laws of the State of New Jersey, the rules promulgated pursuant thereto, and this chapter.

(b) Snowmobiling is only allowed on areas and trails specifically designated for that purpose.

(c) Snowmobiles shall not be operated in a reckless or careless manner or at speeds which are dangerous to persons and/or property.

(d) A person shall not operate a snowmobile while under the influence of intoxicating liquors, narcotics, or hallucinogenic or habit forming drugs.

(e) All accidents involving personal injury or damage to property shall be reported to the Superintendent and law enforcement personnel of the State park at which the accident occurred as soon as possible after the occurrence.

(f) Any race, rally or organized snowmobile activity shall require application for a use permit and/or scheduling at least five days in advance with the Superintendent or designee having jurisdiction over the property to be utilized. The application or request may be denied for reasonable cause.

(g) A person shall not fail or refuse to stop when ordered to do so by authorized enforcement personnel.

(h) On Lake Hopatcong, no snowmobiles shall be operated in excess of 15 miles per hour before 12:00 noon on Sunday.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (e), substituted "Superintendent or designee of the State park at" for "Officer-in-Charge of the State park on"; and in (f), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (e), substituted "and law enforcement personnel" for "or designee".

N.J. Admin. Code § 7:2-3.6 Motor vehicle speed limits

(a) A person shall not travel by motor vehicle on improved roadways under the jurisdiction of the State Park Service at a speed greater than 35 miles per hour unless otherwise posted.

(b) A person shall not travel by motor vehicle on unimproved (dirt, gravel or sand) roadways at a speed greater than 20 miles per hour unless otherwise posted higher or lower.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 New Jersey Register 2799(b), 25 New Jersey Register 5953(a).

N.J. Admin. Code § 7:2-3.7 Parking

(a) A person shall not park any motor vehicle, conveyance or other equipment except in areas designated for parking.

(b) A person shall not park any motor vehicle, conveyance or other equipment so as to block or impede traffic on roadways or paths.

(c) Parking shall be strictly confined to areas designated for that purpose. Temporary parking areas designated by the Superintendent or designee may be used to accommodate special functions.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c), substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-3.8 Traffic direction

Operators of all motor vehicles, bicycles, equestrians, and pedestrians shall comply with all traffic signs and signals and direction by voice, hand or whistle by duly authorized personnel.

N.J. Admin. Code § 7:2-3.9 Motorized bicycle restrictions

(a) Motorized bicycles which meet the provisions of this subchapter are permitted on State Park Service roadways unless otherwise posted.

(b) In the interest of safety, the Superintendent or designee is authorized to temporarily prohibit or limit the operation of motorized bicycles.

(c) A person shall not operate a motorized bicycle on any right-of-way of any operating railroad.

(d) A person under the age of 15 years shall not operate a motorized bicycle on State Park Service property.

(e) A person shall not operate a motorized bicycle unless the operator is in possession of a valid drivers license or a motorized bicycle license, a valid registration, a valid insurance identification card and displays a valid license plate. Non-resident motorized bicycle owners shall be required to have complied with registration and licensing laws of the operator's state and shall obey all other State Park Service and New Jersey motor vehicle and traffic laws.

(f) State Park Service rules applicable to bicycles shall apply whenever a motorized bicycle is operated on State Park Service property.

(g) A motorized bicycle shall carry only the operator.

(h) A person shall not operate a motorized bicycle unless the operator wears a protective helmet of a type approved by the New Jersey Division of Motor Vehicles.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-3.10 Motorized scooters

A person shall not operate a motorized scooter on any lands under the jurisdiction of the State Park Service, including improved or unimproved roads, walkways, and parking areas.

History

• New Rule, R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).

Subchapter 5 OCEAN PARKS AND INLAND PARKS BEACH RESTRICTIONS

N.J. Admin. Code § 7:2-5.1 Trespassing

(a) A person shall not be in, walk on, or travel over any ocean park sand dune, vegetation, or restricted or protected area without specific authorization of the Superintendent or designee.

(b) A person shall not use areas other than designated trails or posted access paths when going from parking areas or roadways to the beaches.

(c) A person shall not trespass in designated restricted areas posted with "Keep Out," "No Trespassing," "Closed" or "Restricted Area" signs.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-5.2 Entry by boat or vessel

(a) A person shall not enter a beach by boat or vessel except in areas specifically designated by the State Park Service for such use.

(b) A person shall not launch or land a boat or vessel except in areas specifically designated by the State Park Service for such use.

N.J. Admin. Code § 7:2-5.3 Fires (open)

(a) A person shall not build or start an open fire on a beach without the approval of the Superintendent or designee.

(b) A person shall not have a permitted open fire closer than 50 feet to a sand dune or a protected area.

(c) An open fire shall not be left unattended or permitted to cause damage to State Park Service facilities or areas. Every open fire shall be extinguished before users leave the area.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-5.4 Camping/erection of tents and shelters

(a) A person shall not camp on any beach under the jurisdiction of the State Park Service.

(b) A person shall not erect, maintain, use or occupy any temporary tent or shelter or any beach under the jurisdiction of the State Park Service unless there is an unobstructed view through such tent or shelter from at least two sides. Nothing herein contained shall be construed to authorize camping on any beach under the jurisdiction of the State Park Service.

N.J. Admin. Code § 7:2-5.5 Restricted activities

(a) Jet skiing shall be allowed on Lake Hopatcong, Lake Musconetcong, Cranberry Lake, and Greenwood Lake without the prior approval of the Superintendent or designee. Jet skiing on Lake Hopatcong, Lake Musconetcong, Cranberry Lake, and Greenwood Lake shall be conducted in accordance with the rules of the New Jersey Boat Regulation Commission at N.J.A.C. 13:82 or as subsequently amended.

(b) A person shall not jet ski, surfboard, wind sail, windsurf, scuba dive, skin dive, or spear goggles dive in ocean parks or, except as proved in (a) above, inland waters under the jurisdiction of the State Park Service without the approval of the Superintendent or designee.

(c) All underwater diving activities approved under (b) above shall be conducted in accordance with rules promulgated by the New Jersey Boat Regulation Commission, N.J.A.C. 7:6 or as subsequently amended.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a) and (b), substituted "Superintendent or designee" for "Officer-in-Charge"; and in (a), updated the N.J.A.C. reference.

Subchapter 6 CAMPING

N.J. Admin. Code § 7:2-6.1 Camping

(a) A person shall not camp on any State Park Service property, except in areas designated and marked for that purpose by the State Park Service.

(b) A person shall not camp without first having obtained a camping permit and site assignment unless otherwise posted or directed by the Superintendent or designee. The camping permit fee pursuant to N.J.A.C. 7:2-17.2(a) shall be paid in full and legal identification of the permittee shall be provided prior to issuance of the permit.

(c) A person under the age of 18 years shall not camp on State Park Service property except when accompanied by a parent, guardian or other adult.

(d) Digging or leveling the ground at camping facilities is prohibited unless specifically authorized by the Superintendent or designee.

(e) Campers shall keep their camping facilities clean and free of safety and fire hazards.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "and" for "or"; in (b), substituted "and site" for "and/or site number", "Superintendent or designee" for "Officer-in-Charge" and "legal" for "positive"; in (c), deleted "responsible" preceding "adult"; deleted (d); recodified (e) and (f) as (d) and (e); in (d), substituted "camping facilities" for "campsites" and "Superintendent or designee" for "Officer-in-Charge"; and in (e), substituted "facilities" for "area" and "and fire" for "or fire".

N.J. Admin. Code § 7:2-6.2 Camping facility occupancy limits

(a) Not more than six people shall occupy a camping facility, excluding group campsites and primitive campsites, unless they are all members of one family. The Superintendent or designee may authorize a greater number of people for occupancy as conditions may warrant.

(b) No more than two vehicles of any type shall be parked at a camping facility, excluding a group campsite or a primitive campsite. The Superintendent or designee may authorize a greater number as conditions may warrant.

(c) Vehicles in excess of the number permitted in (b) above shall be parked at parking areas designated by the Superintendent or designee. The camper assumes responsibility for each vehicle parked.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Campsite occupancy limits". Rewrote the section.

N.J. Admin. Code § 7:2-6.3 Occupancy of camping facilities

(a) A camping facility is considered occupied when it is being used or has been reserved for purposes of camping by a person or persons who have paid the camping permit fee pursuant to N.J.A.C. 7:2-17.2(a) within the applicable time limits. A person shall not take possession or maintain possession of a camping facility when informed by a State Park Service sign or employee that such site is occupied or reserved for occupancy.

(b) All camping facilities shall be occupied by the permittee as of the starting time and date indicated on the permit and shall remain occupied by the permittee during the entire period of stay specified on the permit. Occupancy constitutes the payment of the camping permit fee pursuant to N.J.A.C. 7:2-17.2(a), assignment of a site and the posting at the site of the issued camping facility identification card. Wilderness campsites are exempt from the camping facility identification card requirement (see N.J.A.C. 7:2-6.9).

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Occupancy of campsites". Substituted "camping facility" for "campsite" throughout.

N.J. Admin. Code § 7:2-6.4 Time limits; camping facility

(a) In order to afford the public the greatest possible use of the State Park Service camping facilities, continuous occupancy by the same persons who have paid the camping permit fee of any camping facility is limited as follows:

1. A person or persons shall not occupy a camping facility for more than 14 consecutive nights.

2. A person or persons who have occupied a camping facility for an initial 14-night limit shall not re-register until seven calendar nights have elapsed.

3. Additional camping shall be permitted in intervals up to, but no more than, seven calendar nights at a time with a minimum of seven calendar nights required between each occupancy.

4. A group, family, or person shall not occupy any State Park Service camping facility for more than 40 nights in a calendar year.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Time limits; overnight camping". Rewrote the section.

N.J. Admin. Code § 7:2-6.5 Removal of equipment and personal property

(a) Occupants shall vacate the camping facility by removing all their equipment and personal property prior to the end of the permit period on the last day of assigned occupancy.

(b) The Superintendent or designee is authorized to inventory, remove and store for a period of 30 days or until the owner is found, whichever is shorter, any and all equipment and personal property at a camping facility, which remains at the camping facility at the end of the permit period, or which is being used in violation of this chapter or other State law. Payment of a removal fee and storage fee pursuant to N.J.A.C. 7:2-17.2(d) shall be required from the owner before the equipment and personal property is returned. Items not claimed within 30 days after they are removed from the camping facility shall be disposed of in accordance with established State Park Service policy. The State Park Service policy for the disposal of unclaimed articles shall be posted at each State Park.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "camping facility" for "campsite", and substituted "the end of the permit period" for "noon"; and rewrote (b).

N.J. Admin. Code § 7:2-6.6 Visitors in camping facilities

(a) Visitors are allowed in the camping facilities between the hours of 8:00 A.M. and 8:00 P.M. All visitors shall pay the day user parking fee when applicable pursuant to N.J.A.C. 7:2-17.1. The total number of people at a camping facility, including campers and visitors, shall not exceed six, except at group campsites and primitive campsites.

(b) A visitor shall not be allowed in a camping facility between the hours of 8:00 P.M. and 8:00 A.M.

(c) The Superintendent or designee may extend or limit the visitation hours and number of visitors as conditions warrant.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Visitors in campsite". In (a), substituted "camping facilities" for "campsites", and inserted the final sentence; in (b), substituted "camping facility" for "campsite"; and in (c), substituted "Superintendent or designee" for "area Officer-in-Charge", deleted "temporarily" preceding "extend" and inserted "and number of visitors".

N.J. Admin. Code § 7:2-6.7 Camping facilities reservation procedures

(a) Applications for reservations of camping facilities shall be submitted on forms available from the State Park Service, or by telephone and paid in full by credit card.

(b) A reservation may be made by telephone and paid in full by credit card, between the hours of 8:00 A.M. and 4:00 P.M., for a campsite for use the same night.

(c) Applications shall be accepted up to 11 months in advance of the reservation start date. Except as set forth in (b) above, reservations are not effective until confirmed in writing by the State Park Service. Reservations shall be confirmed on a first come first served basis subject to the availability of camping facilities on the dates for which reservations are requested.

(d) Each camping facility, except group campsites, as noted at (e) below, may be reserved for a minimum of two consecutive nights to a maximum of 14 nights, whenever camping facilities are available for public rental.

(e) Group campsites may be reserved for a maximum period of 14 nights.

(f) All applications for the reservation of camping facilities shall include full payment for the reserved period. The fees are set forth in N.J.A.C. 7:2-17.2

(g) No more than two non-consecutive reservations for camping facilities and overnight facilities shall be in effect for any group, family or person.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Campsite, lean-to's, group campsite reservation procedures". Rewrote the section.

N.J. Admin. Code § 7:2-6.8 Cancellations and refunds

(a) Reservations for camping facilities may be cancelled. A minimum 24-hour notice for the cancellation of a reservation is required in order to receive a refund. A person may cancel a reservation by telephone, in writing, or in person. A cancellation fee as set forth in N.J.A.C. 7:2-17.2(d) shall be deducted from any refund due.

(b) Refunds shall not be made to persons evicted as a result of violations of this chapter or other State law.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote (a).

N.J. Admin. Code § 7:2-6.9 Wilderness campsites

(a) A person shall not have a motorized vehicle at designated wilderness campsites.

(b) Everything carried into the wilderness campsite shall be carried out or placed in refuse containers, if provided.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "refuse" for "authorized garbage".

N.J. Admin. Code § 7:2-6.10 Group campsites

(a) Group camping is restricted to areas specifically designated for this purpose.

(b) A camping group is defined as a minimum of seven persons with the maximum limit determined by the Superintendent or designee.

(c) If group campsites are not available during the period November 1 to March 31, groups may use up to 50 percent of the available family campsites at a State Park, provided there is at least one adult per site, family campsite rates are paid and the limitation of six persons per site is not exceeded.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "designated" for "provided"; in (b), substituted "defined" for "designated" and "Superintendent or designee" for "area Officer-in-Charge"; in (c), inserted "family" following "available" and substituted second occurrence of "family" for "individual".

N.J. Admin. Code § 7:2-6.11 Group camper requirements

(a) All groups of campers under 18 years of age shall have a minimum of one adult 18 years of age or older for each nine campers under 18 years of age in the group.

(b) The adult(s) accompanying group campers under 18 years of age shall be required to supply a roster of campers under 18 years of age to the Superintendent or designee upon request. The roster shall include each camper's name, address, age and the home phone number of the camper's parent or legal guardian.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Group camper supervisor requirements". In (a), deleted "supervisor" following "adult"; in (b), substituted "The adult(s) accompanying" for "Adult supervisors of" and "to the Superintendent or designee" for "under their supervision to the Officer-in-charge".

N.J. Admin. Code § 7:2-6.12 Emergency transportation for group camping

The adult(s) accompanying group campers under 18 years of age shall have sufficient transportation on site to transport the entire group in one trip in the event of an emergency.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Emergency transportation". Rewrote the section.

N.J. Admin. Code § 7:2-6.13 Emergency camping

The Superintendent or designee may permit emergency camping overnight for one night only in a designated area when extreme conditions warrant. Persons permitted emergency camping shall leave by 8:00 A.M. the following morning and shall be charged the campsite fee pursuant to N.J.A.C. 7:2-17.2(a).

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "area Officer-in-Charge" and "designated area" for "day use area or a portion thereof".

N.J. Admin. Code § 7:2-6.14 Abuse of State Park Service camping facilities

(a) State Park Service camping facilities are not for the use of persons or groups as a primary or secondary dwelling or as a mailing address.

(b) Camping by persons unable to prove their legal residence elsewhere is prohibited.

(c) Superintendents or designees are authorized to limit or prohibit all camping or any other overnight use which, in their judgment, is contrary to the intended use stated in (a) above.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Abuse of the camping system". Rewrote (a); and in (c), substituted "Superintendents or designees" for "Area Officers-in-Charge".

Subchapter 7 OVERNIGHT FACILITIES USE

N.J. Admin. Code § 7:2-7.1 Overnight facilities

(a) A person shall not occupy any overnight facility without a permit or the approval of the Superintendent or designee.

(b) A person under the age of 18 years shall not occupy any overnight facility except when accompanied by a parent, guardian or other adult.

(c) The Superintendent or designee is authorized to inventory, remove and store for a period of 30 days or until the owner is found, whichever is shorter, any and all equipment and personal property in an overnight facility which remains at the overnight facility at the end of the permit period or which is being used in violation of this chapter or any other State law. Payment of a removal fee and a storage fee pursuant to N.J.A.C. 7:2-17.2(d) shall be required from the owner before the equipment and personal property is returned. Items not claimed within 30 days after they are removed from the overnight facility shall be disposed of in accordance with established State Park Service policy. The State Park Service policy for the disposal of unclaimed articles shall be posted at each State Park.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "area Officer-in-Charge"; in (b), deleted "responsible" preceding "adult"; deleted (c); recodified former (d) as (c); and in (c), substituted "Superintendent or designee" for "Officer-in-Charge", substituted "30 days" for "90 days" two times and substituted "remains at the overnight facility at the end of the permit period" for "has not been occupied by the owner of the equipment and personal property for any consecutive 24 hours period".

N.J. Admin. Code § 7:2-7.2 Overnight facilities reservation procedures

(a) Reservations of overnight facilities shall be submitted on forms available from the State Park Service, or by telephone and paid in full by credit card.

(b) Applications shall be accepted up to 11 months in advance of the reservation start date. Reservations are not effective until confirmed in writing by the State Park Service. Reservations shall be confirmed on a first come first served basis subject to the availability of overnight facilities on the dates for which reservations are requested.

(c) Reservations for cabin facilities for the use period from the Saturday of Memorial Day weekend through and including Labor Day shall be accepted only for seven consecutive nights or 14 consecutive nights.

(d) Reservations for cabin facilities for the use periods from the day after Labor Day to October 31st and from April 1st to the Friday prior to Memorial Day Weekend shall be accepted for a minimum of two consecutive nights to a maximum of 14 consecutive nights.

(e) Reservations for overnight facilities other than cabins shall be accepted for a minimum of two consecutive nights to a maximum of 14 consecutive nights, subject to the seasonal availability of the facilities at individual parks.

(f) When overnight facilities become available for any reason, they may be made available to the general public up to a maximum of 14 nights as directed by the Superintendent or designee.

(g) Reservations are not in effect until confirmed.

(h) A separate application shall be filed for each overnight facility and period desired.

(i) No more than two non-consecutive reservations for overnight facilities and camping facilities shall be in effect for any group, family or person.

(j) A group, family, or person shall not occupy any State Park Service overnight facility for more than 40 nights in a calendar year.

(k) Full payment for the reserved period requested shall accompany the reservation application.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote the section.

N.J. Admin. Code § 7:2-7.3 Cancellation and refunds

(a) Reservations for designated State Park Service overnight facilities may be cancelled. A minimum 24-hour notice for the cancellation of a reservation is required in order to receive a refund. A person may cancel a reservation by telephone, in writing, or in person. A cancellation fee as set forth in N.J.A.C. 7:2-17.2(d) shall be deducted from any refund due.

(b) Refunds shall not be made to persons evicted as a result of a violation of this chapter or other State law.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote (a); and in (b), substituted "as a result of a" for "for".

N.J. Admin. Code § 7:2-7.4 Visitors in overnight facilities

(a) Visitors are allowed in overnight facilities between the hours of 8:00 A.M. and 8:00 P.M. All visitors shall pay the normal day user parking fee when applicable pursuant to N.J.A.C. 7:2-17.1. The total number of people at an overnight facility, including campers and visitors, shall not exceed the designated occupancy of the overnight facility.

(b) A visitor shall not be allowed in overnight facilities between the hours of 8:00 P.M. and 8:00 A.M.

(c) The Superintendent or designee may extend or limit the visitation hours and number of visitors as conditions warrant.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Visitors". In (a), added the second sentence; in (b), deleted the second sentence; and added (c).

Subchapter 8 BOATING/WATERCRAFT

N.J. Admin. Code § 7:2-8.1 Launching of boats

(a) The launching of boats, canoes and other vessels is allowed at designated areas subject to posted conditions and the payment of a launching fee where required pursuant to N.J.A.C. 7:2-17.1(g).

(b) A person shall not launch or beach a boat, canoe or other vessel or weigh anchor or cast off when the Superintendent or designee has, by posting or verbal direction, prohibited the same.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (a), updated the N.J.A.C. reference.

N.J. Admin. Code § 7:2-8.2 Power boats and motorized jet skis use restrictions

(a) A person shall not operate a power boat or a motorized jet ski on non-tidal waters under the jurisdiction of the State Park Service, except:

1. Electric powered boats are allowed on non-tidal waters under the jurisdiction of the State Park Service.

2. Power boats and motorized jet skis are allowed on Cranberry Lake, Greenwood Lake, Lake Hopatcong and Lake Musconetcong.

(b) A person shall not operate a motorized jet ski on the Spruce Run, Round Valley or Monksville Reservoirs.

(c) Power boats are allowed on Spruce Run, Round Valley and Monksville Reservoirs subject to size restrictions in N.J.A.C. 7:2-8.3(b).

N.J. Admin. Code § 7:2-8.3 Powerboat size restrictions

(a) Powerboats, where permitted on non-tidal waters, may temporarily be further restricted as to maximum horsepower and minimum and maximum boat length, such restrictions being determined by the Superintendent or designee based on use and safety factors.

(b) A person shall not operate a power boat which has a motor size greater than 10 horsepower on the Spruce Run, Round Valley, or Monksville Reservoirs.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-8.4 Sailboats and ice sailboats mast height on the Round Valley, Spruce Run and Monksville Recreation Reservoirs

A person shall not operate a sailboat or ice sailboat with a mast height of greater than 30 feet from the water line on the Round Valley, Spruce Run and Monksville Recreation Reservoirs.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).

N.J. Admin. Code § 7:2-8.5 Use of boat ramps

A person shall not use boat ramps in such a manner as to impede use of the ramp by others.

N.J. Admin. Code § 7:2-8.6 Boating near swimming areas

(a) A person shall not operate a power boat, sailboat or sail board within 200 feet of a designated swimming area.

(b) A person shall not operate human powered slow moving watercraft such as rowboats, pedal boats, canoes, surfboards, or any other water borne mechanisms meeting this definition within 50 feet of a designated swimming area.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Section was "Boating near bathing areas". Substituted "swimming" for "bathing" throughout.

N.J. Admin. Code § 7:2-8.7 Swimming and diving from objects, scuba diving, and skin diving

(a) A person shall not swim or dive from a pier, catwalk, bridge or tower on lands comprising part of a State Park and administered by the State Park Service for public recreation and/or conservation purposes or from any vessel on waters under the jurisdiction of the State Park Service without written approval by the Superintendent or designee.

(b) A person shall not scuba or skin dive in the waters under the jurisdiction or control of the State Park Service except in areas designated and posted for that purpose.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-8.8 Round Valley and Spruce Run wind speed notification systems

(a) A person shall not continue boating activities on the Round Valley or Spruce Run Reservoirs when the wind velocity reaches or exceeds 25 miles per hour.

(b) A person shall not continue boating activities on the Round Valley or Spruce Run Reservoirs when the flashing white warning lights are activated to warn boaters to discontinue boating.

(c) A person shall not continue boating activities on the Round Valley or Spruce Run Reservoirs when verbally directed to discontinue boating activities by the Superintendent or designee or any employee authorized by the Superintendent or designee to issue such warnings.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c), substituted "Superintendent or designee" for "Officer-in-Charge" two times.

N.J. Admin. Code § 7:2-8.9 Boat storage at the Spruce Run Recreation Area

(a) A limited number of boat storage spaces are available at Spruce Run Recreation Area during the season from April 1 through October 31. Fees shall be charged pursuant to N.J.A.C. 7:2-17.1(h) and non-transferable decals shall be assigned for this use. Decals shall be permanently affixed to the boat registered for storage as directed by the Superintendent or designee.

(b) Double-capacity trailers occupying a single storage space shall pay one and one-half times the normal season storage fee as provided in N.J.A.C. 7:2-17.1(h).

(c) Boats shall be removed from the water each night and placed in their assigned storage spaces.

(d) Possession of a boat storage permit does not guarantee entry to the launching area if it is filled to capacity.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (a) and (b), updated the N.J.A.C. reference.

N.J. Admin. Code § 7:2-8.10 Ice boating

(a) Ice boating and ice yachting shall be allowed on Lake Hopatcong, Lake Musconetcong, Swartswood Lake, Spruce Run Reservoir, and Greenwood Lake.

(b) Except as provided in (a) above, ice boating and ice yachting shall be allowed only on those waters specifically designated and posted by the State Park Service for ice boating and ice yachting.

(c) Ice boating and ice yachting shall be allowed on the waters described in (a) above and designated and posted under (b) above provided individual use complies with the following:

1. A minimum of two craft shall be in use at all times;

2. Protective helmets shall be worn;

3. Life jackets or life belt shall be worn; and

4. Masts or riggings and any attachments thereto, may be restricted by the Superintendent or designee or by any employee authorized by the Superintendent or designee to issue such restrictions as determined by use or public safety.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c)4, substituted "Superintendent or designee" for "Officer-in-Charge" two times.
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (a), inserted ", Lake Musconetcong, Swartswood Lake, Spruce Run Reservoir,".

N.J. Admin. Code § 7:2-8.11 Towing behind boats

A person shall not water ski, aquaplane or tow surf boards in non-tidal waters under the jurisdiction of the State Park Service except on Lake Hopatcong, Lake Musconetcong, Greenwood Lake and Cranberry Lake without the written approval of the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-8.12 Conformance with State boating laws

All boating use on waters under the jurisdiction or control of the State Park Service shall be subject to rules promulgated by the New Jersey Boat Regulation Commission, N.J.A.C. 7:6.

N.J. Admin. Code § 7:2-8.13 Lifejackets

(a) A person shall not operate or allow any person to operate any vessel in or on the waters under the jurisdiction or control of the State Park Service unless such vessel has a serviceable United States Coast Guard approved personal floatation device (PFD) for each person on board.

1. Such PFDs shall be of the type(s) required by the United States Coast Guard for a vessel of that class operating on navigable waters.

2. Such PFDs shall be readily accessible when the vessel is underway.

(b) The requirements of (a) above apply to all vessels except surfboards, racing shells, rowing sculls and racing kayaks.

N.J. Admin. Code § 7:2-8.14 Careless and negligent operations

(a) A person shall not operate a vessel in such a manner as to cause alarm, personal injury or property damage.

(b) Boaters shall comply with all posted regulatory signs.

(c) Boaters shall secure their vessels in a manner that will not cause personal injury or damage to private or State Park Service property.

N.J. Admin. Code § 7:2-8.15 Rules of the road

All vessels navigating the waters under the jurisdiction or control of the State Park Service shall comply with the inland rules of the road promulgated by the United States Coast Guard now in effect and as may hereafter be amended, supplemented, modified or changed, except where the international rules of the road are applicable. Copies of the current inland rules of the road may be obtained at any office of the United States Coast Guard or the New Jersey State Police Marine Bureau.

N.J. Admin. Code § 7:2-8.16 Speed

Power vessels shall at all times be operated at a speed to avoid danger of injury to life and all manner of craft whether floating, moored, anchored or underway, or to piers, wharves, bulkheads, draw spans or other waterfront construction, either directly or by the effect of the wash or wave raised by such power vessel through its speed or otherwise.

N.J. Admin. Code § 7:2-8.17 Obeying orders

A vessel shall not fail to stop when ordered to do so by any State Park Service law enforcement officer or other State Park Service employee authorized by the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-8.18 Exclusion of racing events

This subchapter shall not apply to boat racing activities which have been approved by the Director of the Division of Parks and Forestry or the Assistant Director of the Division for the State Park Service.

N.J. Admin. Code § 7:2-8.19 Vessel use restrictions

The use of boats, canoes and vessels of all types on the waters under the jurisdiction or control of the State Park Service shall be prohibited by the Superintendent or designee whenever the safety, health or welfare of the public so dictates.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-8.20 Operating vessels during nighttime

Where night boating is authorized, no person shall operate a vessel at speeds in excess of five nautical miles per hour or in excess of speeds established by the New Jersey Boat Regulation Commission for Lake Hopatcong at N.J.A.C. 7:6-4.5, for Greenwood Lake at N.J.A.C. 7:6-4.7 and for Cranberry Lake at N.J.A.C. 7:6-4.8 or as subsequently amended.

N.J. Admin. Code § 7:2-8.21 Disposal of waste from vessels

(a) A person shall not dump waste, excluding bilge water, from a vessel into the waters under the jurisdiction or control of the State Park Service.

(b) Any vessel equipped with a toilet, sink and/or shower shall not be operated on waters under the jurisdiction or control of the State Park Service unless the toilet, sink and/or shower systems are completely shut off or kept inoperative the entire time the vessel is in the State Park Service waters or unless the vessel is equipped with an operable holding tank.

(c) A person shall not discharge holding tank waste except in disposal facilities designed and provided for such waste.

N.J. Admin. Code § 7:2-8.22 Low water levels Round Valley, Spruce Run and Monksville Reservoirs

During periods of low water levels at the Round Valley, Spruce Run and Monksville Reservoirs as evidenced by increased exposure of mud flats, all restricted area fence lines shall be deemed to be extended to the waters' edge. This extension shall then be included in the restricted area limits and shall constitute the restricted area limits.

N.J. Admin. Code § 7:2-8.23 Scuba and skin diving at Round Valley and Spruce Run Recreation Areas

(a) Scuba and skin diving is permitted at Spruce Run and Round Valley Recreation Areas provided the diver notifies the park office by phone in advance of the dive, giving name, location and anticipated hours of diving. Before diving, the diver shall complete a registration form at the park office and notify the park office when the dive is complete.

(b) All provisions of the New Jersey Boat Regulation Commission, N.J.A.C. 7:6, shall be followed and a certification card is required.

N.J. Admin. Code § 7:2-8.24 Lake Hopatcong Dock Restrictions

(a) The construction of a new dock or the replacement, expansion, or extension of any existing dock in the waters of Lake Hopatcong shall, in addition to the requirement set forth in (b) below, be designed and constructed in accordance with the requirements of all Federal, State and local agencies having jurisdiction over the design and construction of the proposed new dock, replacement, expansion, or extension.

(b) New docks and the construction of a new replacement or the expansion or extension of any dock in existence in the waters of Lake Hopatcong on October 7, 1991 shall not exceed more than 50 feet in length into the waters of Lake Hopatcong from the mean high water line. Any dock in existence on the effective date of this new rule that exceeds 50 feet in length from the mean high water line may be improved, maintained and repaired but shall not be replaced, expanded or extended beyond the length of the dock from the mean high water line. The mean high water line shall be determined at the time of the proposal of the new dock or replacement, expansion or extension of any dock in the waters of Lake Hopatcong.

(c) Prior to the construction of any new dock or the replacement, expansion or extension of any dock in the waters of Lake Hopatcong, the owner of the dock shall submit to the Superintendent or designee at Lake Hopatcong State Park a written notification of intent to construct. The notification of intent to construct shall include the following:

1. Transmittal letter signed by the owner of the dock;

2. Plans and specifications showing:

i. The location, size and design of the proposed new dock, replacement, expansion or extension; and

ii. The mean high water line and the length of the proposed new dock, replacement or extension from the mean high water line into Lake Hopatcong; and

3. Copies of all permits, licenses, approvals, certifications and any other document issued by the appropriate Federal, State and local authorities having jurisdiction over the proposed new dock, replacement, expansion or extension.

(d) Upon receipt by the Superintendent or designee of a complete notification of intent to construct under (c) above, the Superintendent or designee shall have a period of 45 days to review the notification and approve the construction of any new dock or the replacement, expansion or extension of any dock in the waters of Lake Hopatcong based upon a determination that:

1. The owner of the dock has obtained all permits, licenses, approvals, certifications and any other document issued by the appropriate Federal, State and local authorities having jurisdiction over the proposed new dock, replacement, expansion or extension; and

2. The proposed new dock, replacement, expansion or extension is in compliance with (b) above.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In the introductory paragraphs of (c) and (d), substituted "Superintendent or designee" for "Officer-in-Charge" throughout.

Subchapter 9 DAY USE GROUP

N.J. Admin. Code § 7:2-9.1 Day use group reservation

(a) Groups of 20 or more persons using or visiting any lands or waters under the jurisdiction of the State Park Service for any purpose whatsoever shall make a reservation for such use or visitation.

(b) Reservations shall be made at the area office for the specific State Park, at least five days in advance of the use or visit.

N.J. Admin. Code § 7:2-9.2 Failure to make a reservation

(a) The State Park Service shall refuse admittance to groups of 20 or more persons without reservations.

(b) The Superintendent or designee may temporarily waive day use group reservation requirements when field conditions dictate.

(c) Not more than three non-consecutive reservations for day use group facilities shall be in effect for any one person or group at an individual State park at one time.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-9.3 Adult supervision

Each day use group shall have a minimum ratio of one adult supervisor, 18 years of age or older, for each nine children under 18 years of age in the group.

N.J. Admin. Code § 7:2-9.4 Group leader

Each day use group making reservations for visitation shall designate one responsible adult, 18 years of age or older, as group leader and his or her name and address shall be furnished to the Superintendent or designee upon arrival.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-9.5 Day use group roster

(a) All day groups shall have available during the use or visit, and may, prior to the commencement of the use or visit, be required to supply a roster to the Superintendent or designee. The roster shall contain the following information:

1. The name, address and phone number of the organization;

2. The name and address of the designated group leader; and

3. The names of all other persons in the group.

(b) Failure to supply the roster required in (a) above upon request by the Superintendent or designee may be cause for refusing the group's admittance to, or removal of the group from, the park, forest, recreation area, historic site, marina, or natural area.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge" throughout.

N.J. Admin. Code § 7:2-9.6 Buses transporting day use groups

(a) All buses transporting day use groups shall remain at a parking location designated by the Superintendent or designee for the entire period the group is present at the facility.

(b) Drivers of buses transporting day use groups shall remain in the immediate day use area at all times and are not to leave the area without specific approval of the Superintendent or designee.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge" throughout.

N.J. Admin. Code § 7:2-9.7 Group picnicking and reservation procedures

(a) Group picnicking is restricted to areas specifically provided for this purpose.

(b) The number of people in any group using a group picnicking facility shall not exceed the capacity of the facility without first obtaining the approval of the Superintendent or designee and upon such conditions that the Superintendent or designee may reasonably require to assure public safety and protection of State-owned property.

(c) Applications for reservation of group picnicking facilities shall:

1. Be submitted by mail to or in person at the area office for the specific State park in which the facility is located;

2. Include the following information:

i. The name of the group;

ii. The name, telephone number and address of the designated group leader; and

iii. The date for which reservation is requested;

3. Be received in the area office after January 2 of the year in which the facility is to be used; and

4. Not be effective until confirmed in writing by the State Park Service.

(d) The Superintendent or designee shall post a sign at each group picnicking facility indicating that the facility has been reserved and the name of the group.

(e) If the group picnicking facility is not reserved, the facility may be used on a first-come, first-served basis.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "area Officer-in-Charge"; and in (b) and (d), substituted "Superintendent or designee" for "Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Deleted former (c)2; and recodified former (c)3 through (c)5 as (c)2 through (c)4.

N.J. Admin. Code § 7:2-9.8 Group use of facilities on weekends and holidays

(a) Day group use of facilities on weekends or holidays is not permitted except as provided in (b) below.

(b) The Superintendent or designee may temporarily authorize weekend or holiday day group use only when facility and staffing requirements allow.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), substituted "Superintendent or designee" for "Officer-in-Charge".

Subchapter 12 HIKING TRAILS

N.J. Admin. Code § 7:2-12.1 Scope

In addition to the applicable provisions of N.J.A.C. 7:2 and the applicable Federal regulations for that portion of the National Scenic Appalachian Trail which passes through land under the jurisdiction of the State Park Service, the following shall constitute the rules of the State Park Service hiking trails.

N.J. Admin. Code § 7:2-12.2 Hiking trail use

(a) The use of all designated hiking trails except for posted multi-use trails is restricted solely to foot travel and the legitimate activities associated with the pursuit of hiking.

(b) The Appalachian Trail shall not be used for special events or group activities that degrade the Trail's natural or cultural resources or social values. These activities include publicized spectator events, commercial or competitive activities or large group programs. Groups spending one or more nights on the Trail shall not exceed 10 persons in the same organization and day-use groups shall not exceed 25 persons in the same organization, unless otherwise designated in the New Jersey Appalachian Trail Management Plan.

N.J. Admin. Code § 7:2-12.3 Hiking trail restrictions

(a) Hiking trail use is limited to the routes marked or designated by the State Park Service for such use.

(b) A person shall not leave a marked trail and enter upon adjacent property not under the jurisdiction or control of the Department without permission of the owner.

(c) The use of bicycles and any motor vehicles except emergency vehicles on hiking trails is prohibited.

(d) The use of horse or pack animals on hiking trails is prohibited.

(e) Everything carried into a hiking trail or area shall be carried out by the hiker or placed in the proper trash receptacle, where provided.

(f) A person shall not molest or harass wildlife, livestock, pets or other domestic animals encountered along or adjacent to a trail.

(g) All pets shall be caged or held on a leash and under the immediate control of the owner at all times.

(h) The possession and use of alcoholic beverages is prohibited.

(i) The cutting, digging, defacing and/or removal of any vegetation or physical features is prohibited.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (g), deleted "furred animals or" preceding "pets".

N.J. Admin. Code § 7:2-12.4 Fires on hiking trails

(a) No open fires shall be started on any hiking trail under the jurisdiction or control of the State Park Service except at campsites designated and approved by the State Park Service for hiking trail users.

(b) No open fires shall be started at any campsite designated and approved by the State Park Service for hiking trail users under (a) above without first obtaining a permit for such purpose from the State Park Service. The open fire shall be started and maintained in accordance with the permit which shall designate the campsite location, hours that an open fire may be started and maintained, and type of fuel.

(c) No open fires shall be started on the Appalachian Hiking Trail. Self-contained stoves may be used without a permit.

(d) Every person using a hiking trail under the jurisdiction or control of the State Park Service shall promptly report any uncontrolled fire thereon or any uncontrolled fire insight from the hiking trail to the nearest law enforcement or fire agency.

N.J. Admin. Code § 7:2-12.5 Hiker camping

(a) Hiker camping shall mean the erection of a tent or shelter of natural or synthetic material and/or preparing a sleeping bag or other bedding material for the purpose of overnight stay.

(b) Hiker camping is permitted only as part of the hiking experience on a hiking trail under the jurisdiction or control of the State Park Service.

(c) Hiker camping is permitted in hiker camping areas or other established campsite areas designated and approved by the State Park Service for overnight camping.

(d) On the Appalachian Trail hiker camping is limited to one overnight stay at each designated hiker camping area.

(e) Maximum occupancy for each hiker campsite may be limited or expanded by the Superintendent or designee as conditions warrant.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (e), substituted "Superintendent or designee" for "area Officer-in-Charge".

Subchapter 13 STATE MARINAS

N.J. Admin. Code § 7:2-13.1 Scope

In addition to the applicable provisions of N.J.A.C. 7:2 and unless otherwise provided, this subchapter constitutes the rules for State marinas under the jurisdiction of the State Park Service.

N.J. Admin. Code § 7:2-13.2 Application for vessel berth permits at State marinas

(a) Applications for a vessel berth permit at State marinas shall be categorized by the size of the berth for which a permit application is submitted and, except for the Senator Frank S. Farley State Marina, whether the applicant is a resident of New Jersey or a non-resident. The New Jersey resident category shall have complete priority over the non-resident category listing of applicants for the same berth size category at each State marina except for the Senator Frank S. Farley State Marina.

(b) Applications for a berth permit shall be submitted on forms available from the State Park Service and shall be accepted year-round at the marina office at the specific State marina in which a berth permit is requested. All berth permit applications shall be:

1. Completed and signed by the person(s) in whose name(s) the permit will be issued;

2. Accepted in the name of an individual(s) only. No application shall be accepted in the name of a corporation or partnership;

Completed, signed and not removed from the marina office at the specific State marina in which a berth permit is requested; and

4. Except for the Senator Frank S. Farley State Marina, accompanied by a New Jersey drivers license as proof of residency when the applicant claims to be a New Jersey resident.

i. If an applicant claiming to be a New Jersey resident demonstrates to the satisfaction of the Superintendent or designee that the applicant does not have a New Jersey drivers license for good and sufficient reason, the State Park Service reserves the right to require other proofs that the applicant is a resident of New Jersey.

(c) Berth permits shall be issued in the name(s) of the persons that signed the original berth permit application and assignments shall be made from priority waiting lists based on the chronological order of the date on which each berth permit application is completed and received at the marina office at the specific State marina in which a berth permit is requested. A priority waiting list shall be maintained for and prominently posted for public review at each State marina. Except for the Senator Frank S. Farley State Marina, waiting lists shall be maintained in two categories: New Jersey resident and non-resident for each berth size. Waiting lists shall be maintained at the Senator Frank S. Farley State Marina for each berth size without regard to residency.

(d) Annually, in January, an applicant must confirm that he or she wants to remain on the applicant waiting list. Written confirmation shall be submitted to the marina office, which is open seven days a week between the hours of 8:00 A.M. and 4:30 P.M. (except legal holidays and emergency closing of offices). The applicant shall sign the confirmation and submit the confirmation by appearing in person at the marina office, or by mailing the confirmation form to the marina office. Mailed confirmation forms must be postmarked no later than January 31, and shall include a self-addressed, stamped envelope. The State Park Service is not responsible for misdirected or lost mail. A telephone call, fax, or e-mail will not be accepted. Failure to notify the marina office in accordance with this subsection shall result in cancellation of the application and removal of the applicant from the waiting list.

(e) Applicants purchasing a vessel of a different size category than that for which application was made who desire a berth for the new vessel shall submit an application for a berth in the category of the new vessel and shall be placed as a new applicant on the list of that category.

(f) If, for any reason, an applicant refuses or fails to accept two offered berth permits in accordance with the procedure in N.J.A.C. 7:2-13.3(b)6, the applicant's permit application shall be cancelled and the applicant's name shall be removed from the waiting list.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b)2, inserted "or partnership"; in (b)4i, substituted "Superintendent or designee" for "Officer-in-Charge"; and rewrote (d).
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote (d).

N.J. Admin. Code § 7:2-13.3 Berth permits

(a) Seasonal or annual berth permits shall be issued at the Forked River State Marina, Leonardo State Marina, Fortescue State Marina, and Senator Frank S. Farley State Marina as follows:

1. Forked River State Marina, Senator Frank S. Farley State Marina, and Leonardo State Marina:

i. April 1 to October 31 (Summer);

ii. November 1 to March 31 of the subsequent year (Winter);

2. Fortescue State Marina:

i. April 1 to March 31 of the subsequent year (Annual);

ii. November 1 to March 31 of the subsequent year (Winter).

(b) Berth permits for the summer season from April 1 to October 31 shall be issued in accordance with the following procedure.

1. All summer berth permittees of record on October 31 shall be given an opportunity to renew their berth permit for the same size berth for the next summer season. A summer berth permit renewal form shall be forwarded to each permittee of record during the first week of November of the year preceding the permit period year or as soon thereafter as possible.

2. On or before December 31 of the year preceding the permit year, the permittee of record shall return the following to the marina office:

i. A permit renewal form signed by the permittee of record;

ii. Payment in full for the berth offered;

iii. A valid New Jersey vessel registration solely in the name of the permittee of record for the vessel owned by the permittee of record which will occupy the offered berth; and

iv. A copy of the Certificate of Title to the vessel solely in the name of the permittee of record.

3. If the permittee of record does not return the documents and payment in full on or before December 31 as required in (b)2 above, the State Park Service will mail the permittee a notice of cancellation and the slip will be immediately reassigned.

(c) Berth permits for the annual period from April 1 to March 31 shall be issued in accordance with the following procedure.

1. All annual berth permittees of record on October 31 shall be given an opportunity to renew their berth permit for the same size berth for the next annual season. An annual berth permit renewal form shall be forwarded to each permittee of record during the first week of December of the year preceding the permit period year or as soon thereafter as possible.

2. On or before February 1 of the permit year, the permittee of record shall return the following to the marina office:

i. A permit renewal form signed by the permittee of record;

ii. Payment in full for the berth offered;

iii. A valid New Jersey vessel registration in the name of the permittee of record only for the vessel owned by the permittee of record which will occupy the offered berth; and

iv. A copy of the Certificate of Title to the vessel solely in the name of the permittee of record.

3. If the permittee of record does not return the documents and payment in full on or before February 1 as required in (c)2 above, the marina operator shall on the first business day after the due date or as soon as possible thereafter give the permittee of record written notice by certified mail return receipt requested, to return the documents and payment to the marina office within 10 working days after the date of the notice.

4. If the documents and payment are not received in the marina office within 10 working days after the date of the written notice as provided in (c)3 above, the offer to renew the permit as provided in (c)1 above shall become void immediately upon expiration of the 10 day period and the subject berth permit immediately reassigned.

(d) Annual and summer berth permits shall be issued for all vacated berths in accordance with the following:

1. Permittees of record in the marina who have submitted a written request to transfer to another berth in the marina shall be given an opportunity to transfer to a vacated berth. Requests for transfer shall be prioritized based on the date the request is received in the marina office.

2. Except for the Senator Frank S. Farley State Marina, remaining vacant berths shall be offered to New Jersey resident applicants that are number one on the posted list of permit applicants for the size berths available. At the Senator Frank S. Farley State Marina, remaining vacant berths shall be offered to the applicants that are number one on the waiting lists for each berth size available.

3. When the New Jersey resident list is exhausted in any category, applicants on the non-resident list in that category shall be offered available berth(s).

4. In the event both resident and non-resident lists are exhausted in a given category, berths in that category shall be offered to applicants on the resident and then the non-resident berth application list for the next smaller berth size category.

5. In the event that the next smaller berth size category waiting lists described in (d)4 above are exhausted, the availability of the vacant berths shall be publicly posted at the marina. Permits for the vacant berths shall be issued upon receipt of a berth permit application in accordance with N.J.A.C. 7:2-13.2.

6. Permits for vacated berths shall be offered under (d)1 through 5 above to applicants by category and in numerical order within that category. A minimum of three documented attempts shall be made to notify the applicant of the availability of a berth by telephone during normal business hours. If the marina office is not able to contact the applicant, the berth shall be offered to the next applicant on the waiting list. Within 10 days after the offering, the applicant shall return the following to the marina office:

i. A permit form signed by the permittee of record;

ii. Payment in full for the berth offered; and

iii. A valid New Jersey vessel registration and title for the vessel owned solely by the permittee of record and which is in the same size category as the berth offered.

(e) Berth permits for the winter season from November 1 to March 31 shall be issued in accordance with the following procedure:

1. On a first come first served basis to:

i. Permittees of record in the marina; and

ii. Other interested boaters.

2. Winter berth permits shall be effective:

i. Upon payment of the winter berth fee by permittee of record; or

ii. Upon payment of the winter berth fee and execution of the non-renewable winter berth permit, by other interested boaters.

(f) At the Leonardo and the Forked River State Marinas, berth permits for the winter season from November 1 to March 31 shall, in addition to the applicable provisions of this chapter, be issued subject to the following conditions:

1. Vessels occupying a winter berth shall have electricity available each weekend during the winter season from 4:00 P.M. Friday to 8:00 A.M. Monday. The use of electricity during any other period during the winter season shall be by the prior approval of the Superintendent or designee.

2. The use of a thermostatically controlled de-icing system is subject to the prior approval of the Superintendent or designee. Permittees shall place the de-icing unit in a location on the vessel that is in full view by marina personnel. The period of operation of de-icing units shall be determined by the Superintendent or designee based on weather conditions.

(g) Berth permits shall not be issued for the following purposes:

1. Berthing of domicile type units including, but not limited to, powered and unpowered house type craft specifically designed for dockside living on other than a transient basis;

Condominium type berth leasing;

3. Use as a watersport activity center such as water skiing, parasailing or use of personal watercraft;

4. Berthing of vessels to be utilized in time sharing ventures; or

5. Use of a vessel as a domicile, residence or habitat.

(h) Signature by the permittee on the permit constitutes agreement to abide by this chapter and any other pertinent State and Federal statutes, rules and regulations. Failure to comply with this chapter and pertinent State and Federal statutes, rules and regulations shall be cause for immediate cancellation of the permit, forfeiture of all fees paid and removal of the vessel from the Marina.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b)1, substituted "November" for "December"; in (b)2, substituted "December 31" for "February", and inserted "year preceding the"; in (b)3, substituted "December 31" for "February 1"; in (f), substituted "this chapter" for "N.J.A.C. 7:2"; in (f)1 and (f)2, substituted "Superintendent or designee" for "Officer-in-Charge" throughout; and in (g)3, inserted "or use of personal watercraft".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote (b)3; and deleted (b)4.

N.J. Admin. Code § 7:2-13.4 Berth assignment

(a) The State Park Service reserves the right to limit the number and category of use of berths whether seasonal or transient available for assignment within any State marina.

(b) A berth shall not be assigned for the summer or winter season unless a berth permit has first been issued for the season. The size of the berth assigned shall be based on the size category described in the permit and application.

(c) Berth assignments are made by the Superintendent or designee.

(d) Transient berth assignments shall be available on a first come first served basis and shall be available on a monthly or daily basis at the discretion of the Superintendent or designee subject to the following conditions:

1. Transient berth assignments shall become effective upon berth occupancy, payment of the applicable fee and execution of the transient registration card;

2. The daily transient period shall be from the time of occupancy to 12:00 noon of the following day; and

3. The monthly transient period shall be from the time of occupancy to 12:00 noon of the 30th day of occupancy.

(e) Any vessel occupying a berth without a valid seasonal permit shall be charged at the daily or appropriate transient rate for the duration of berth occupancy.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c) and (d), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-13.5 Berth reassignment

(a) The reassignment of berths within a State marina shall be made in accordance with the following procedures:

1. Reassignment shall be made only by the Superintendent or designee.

2. In the event of the death of the permittee of record, the berth which is the subject of the permit, may be assigned by the Superintendent or designee to the spouse of the deceased permittee of record.

3. A permittee of record shall be allowed to assign the rights granted under the permit subject to the following conditions:

i. The permittee of record shall submit a written request for subletting to the Superintendent or designee;

ii. The sublease shall be limited to a period not to exceed the annual or summer berthing season for which the assigned permit was issued;

iii. The sublease shall be administered solely by the Superintendent or designee of the marina containing the affected berth;

iv. A sublessee shall be obtained by the Superintendent or designee from the application list for the berth category involved, beginning at the top of the list and continuing numerically, until the berth is reassigned;

v. The permittee of record shall be liable for all fees to the end of the month in which berth sublease is finalized;

vi. A cancellation fee as provided in N.J.A.C. 7:2-17.4(d)2 shall be assessed to the permittee of record;

vii. No berth sublease shall be considered unless payment, for the affected period, in full has been provided by the permittee of record;

viii. A berth shall not be sublet if the permittee of record is in his first year of occupancy;

ix. Berth sublease requests for an annual or summer berth permit shall not be honored if received after June 30th;

x. Berth sublease requests for a winter berth permit shall not be honored;

xi. A permittee of record may sublet a berth only one time during the term of his or her permit; and

xii. A sublessee may not further sublet his or her berth.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Substituted "Superintendent or designee" for "Officer-in-Charge" throughout; in (a)3i, substituted "subletting" for "assignment"; in (a)3ii, substituted "sublease" for "assignment", inserted "or" and deleted "or winter" following "summer"; in (a)3iii, substituted "sublease" for "assignment"; in (a)3iv, substituted "A sublessee" for "Assignments"; in (a)3v, (a)3vii, (a)3ix and (a)3x, substituted "sublease" for "reassignment"; in (a)3viii, substituted "sublet" for "reassigned"; in (a)3ix, deleted "and" from the end; in (a)3x, substituted a semicolon for the period at the end; and added (a)3xi and (a)3xii.

N.J. Admin. Code § 7:2-13.6 Multiple ownership of a vessel

(a) A berth permit shall be issued in the names of multiple owners only if the vessel is owned by the multiple owners and they are named on the original berth application.

(b) In the event that subsequent to berth assignment, a multiple ownership is formed or a person not identified on the original berth application acquires an ownership interest in the vessel identified in a berth permit, the new owner shall have no rights to the berth which is the subject of the permit. Rights to the subject berth must be acquired through the regular application procedure.

N.J. Admin. Code § 7:2-13.7 Marina regulations

(a) Walkways and piers shall be kept clean at all times. Permittees are responsible for the cleanliness of their immediate berth areas.

(b) Fuel tanks shall be filled only at the marina fuel station. Draining, cleaning and/or removal of fuel tanks and/or the use of gasoline or other flammable solvent as a cleaning agent is prohibited within the marina boundaries. The use or storage of a portable gas can for fueling within the marina boundaries is prohibited.

(c) Boat toilets shall not be used while the boat is in the marina.

(d) The State Park Service, through its representative, may arrange for the relocation or removal and hauling out of any boat which it determines to be in an unsafe or sinking condition, provided the owner is unavailable or fails to respond to notification of said unsafe conditions. All charges for said relocation or removal and hauling out shall be paid by the owner.

(e) Major boat alterations or repairs shall not be undertaken while a boat is on marina property without specific permission from the Superintendent or designee.

(f) Additions or alterations shall not be made to piers, walkways or other marina property without the written consent of the Superintendent or designee.

(g) Any and all refund(s) for a berth fee shall be subject to a cancellation charge. Refunds shall not be paid prior to reassignment of the berth and collection of the berth fee. Refunds shall not be granted for transient berth assignments.

(h) Berths are not transferable and shall be occupied only by the boat owned by the permittee of record as described on the permit.

(i) The State Park Service reserves the right of reassigning a boat to a comparable berth other than the one originally assigned.

(j) Dinghies stored in permittees' berths shall not exceed 10 feet in length and shall not encroach on adjacent berth space. Dinghies shall not be stored on or under piers, walkways or on land.

(k) Boat berths shall be vacated immediately upon expiration of permit period.

( l ) All personal property, lines and gear shall be removed from marina piers and property at the expiration of the permit period. The Superintendent or designee is authorized to inventory, remove and store for a period of 90 days or until the owner is found, whichever is shorter, any and all equipment and personal property from marina piers and property at the expiration of the permit period or which is being used in violation of this chapter or any other applicable law. Payment of a removal fee and storage fee pursuant to N.J.A.C. 7:2-17.2(d) shall be required from the owner before the equipment and personal property is returned. Items not claimed within 90 days after they are removed from the pier shall be disposed of in accordance with established State Park Service policy.

(m) Commercial boats are allowed only in designated areas.

(n) Use of marina parking lots by camper, recreation or any other type of vehicle for the purpose of camping or storage is prohibited.

( o ) The parking of disabled vehicles on marina lands for a period in excess of 24 hours is prohibited.

(p) Any condition on a vessel or any premises used by the permittee and comprising part of the marina declared to be a fire or safety hazard by the Superintendent or designee shall be corrected immediately by the permittee.

(q) Only berth permittees and their guests are permitted marina access between the hours of 10:00 P.M. and 8:00 A.M.

(r) The State Park Service reserves the right to utilize, assign or reassign any berth.

(s) A berth permittee shall advise the Superintendent or designee whenever a vessel will be out of the marina for a period of 48 hours or more. When a berth will be vacant for 48 hours or more, the State Park Service may utilize the berth for any purpose it deems appropriate without reimbursement to the permittee of record.

(t) The storage of flammable liquids or materials within dock boxes or other storage areas by permittee is prohibited.

(u) A vessel shall not be removed from the marina prior to payment of all outstanding fees and charges.

(v) A person shall not make noise that is unreasonable considering the nature and purpose of the actor's conduct, locations, time of day and other factors that would govern the conduct of a reasonably prudent person under the circumstances.

(w) Unattended property that interferes with public safety, orderly management of the marina or presents a threat to the resources may be impounded and stored by the Superintendent or designee. After 90 days, unclaimed articles may be disposed of in accordance with established State Park Service policy.

(x) Dock boxes shall be installed only with the prior approval of the Superintendent or designee, and must be removed at the end of the permit year.

(y) Swimming is prohibited at marinas.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (b), added the last sentence; in (e), (f), ( l), (p), (w) and (x), substituted "Superintendent or designee" for "Officer-in-Charge"; in ( l), substituted "chapter" for "Chapter"; and in (q), substituted "marina" for "pier".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (x), inserted ", and must be removed at the end of the permit year"; and added (y).

Subchapter 16 ISLAND BEACH STATE PARK RULES

N.J. Admin. Code § 7:2-16.1 Scope

In addition to other applicable provisions of this chapter, this subchapter constitutes the rules of Island Beach State Park.

N.J. Admin. Code § 7:2-16.2 Mobile sport fishing vehicles/permits/restrictions

(a) Four-wheel drive mobile sport fishing vehicles (MSFV) are permitted on specifically designated areas of Island Beach State Park for the purpose of surf fishing from the open beach provided:

1. An application for a MSFV permit is completed and approved through the Island Beach State Park office; and

2. An approved permit, decal or placard for which the proper fee has been fully paid as provided in N.J.A.C. 7:2-17.3(b) is displayed on or from the MSFV as directed by the Superintendent or designee when on Island Beach State Park.

(b) The following minimum basic items of equipment or supplies shall be carried by the MSFV operator while on the open beach of Island Beach State Park:

1. A spare tire;

2. A tire gauge;

3. A workable jack and board or other material for supporting the jack (3/4 inch by 12 inch by 12 inch plywood minimum);

4. A tow chain or snatch line;

5. A shovel;

6. A flashlight--mandatory during hours of darkness;

7. A fire extinguisher;

8. An auto first aid kit;

9. A litter bag; and

10. At least a quarter tank of fuel.

(c) MSFV permits are available for a calendar year or a three-day period. The permit grants entry to Island Beach State Park free of charge to the vehicle and operator complying with N.J.A.C. 7:2-16.3(b) and (c). All other occupants shall adhere to the current admission fee policy as provided in N.J.A.C. 7:2-17.1.

(d) MSFV permits are non-refundable and non-transferable.

(e) MSFV permits for a three-day period are available at the Island Beach Gate House. Annual MSFV permits are available through the Island Beach State Park office by mail or in person.

(f) The Superintendent or designee may limit the number of three-day MSFV permits which may be in effect at any one time. Three-day permits expire at midnight on the third full day after the day of issue. Three-day permits may be renewed only after a 24-hour waiting period.

(g) The number of MSFVs on the open beach at any one time, whether three-day or annual, may be limited by the Superintendent or designee in the interest of safety or responsible management of the resource.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a)2, substituted "Superintendent or designee" for "Officer-in-Charge"; and in (f) and (g), substituted "Superintendent or designee" for "area Officer-in-Charge".
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• In (a)2, updated the N.J.A.C. reference.

N.J. Admin. Code § 7:2-16.3 Surf fishing

(a) Surf fishing is permitted only on the ocean side of Island Beach State Park in specifically designated areas approved by the Superintendent or designee. An annual surf fishing permit shall be issued upon:

1. Completion and approval of a surf fishing permit application at the Gate House at Island Beach State Park; and

Payment of the annual surf fishing permit fee as provided in N.J.A.C. 7:2-17.3(d)1.

(b) All persons over the age of 12 years on the beach under the authority of a MSFV or surf fishing permit shall have fishing gear or tackle (rod, reel, line, hooks, any bait or lures).

(c) All persons over the age of 12 years on the beach under the authority of a MSFV or surf fishing permit are restricted in their activities to the act of catching fish or trying to catch fish and those activities reasonably incidental thereto including: travel to and from a fishing location, setting up, time to stow gear, use of sanitary facilities and the like.

(d) The annual surf fishing permit allows fishermen to park their automobiles and walk to the designated surf fishing areas. The permit grants entry for the licensed vehicle and listed permit holder free of charge. All other occupants of the vehicle shall adhere to the admission fee policy as provided in N.J.A.C. 7:2-17.1.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "area Officer-in-Charge".

N.J. Admin. Code § 7:2-16.4 Mobile sport fishing vehicle regulations

(a) The maximum speed limit for MSFVs is 10 miles per hour while on the open beach or sand access roads.

(b) Drivers shall yield to the right.

(c) Vehicles shall be parked facing away from the ocean to avoid moisture and salt spray on the windshield and ignition system.

(d) MSFV operators shall park so as to avoid obstructing access to other MSFV and administrative and operational vehicles.

(e) The MSFV shall be parked far enough from the water to avoid the incoming tide.

(f) MSFV operators shall use extreme caution when operating on the beach to avoid other beach users, fishing equipment, and any other paraphernalia lying in or about the sand.

(g) MSFV operators shall not drive on grasses or dunes.

(h) MSFV's shall be in good repair and shall not leak vehicle fluids.

N.J. Admin. Code § 7:2-16.5 Island Beach State Park

(a) Island Beach State Park shall be closed to all persons, excepting MSFV permit holders surf fishermen and Barnegat Bay waterfowl hunters between 8:00 P.M. and 8:00 A.M. from April 1 through October 31 and between 8:00 P.M. and 5:00 A.M. from November 1 through March 31 annually.

(b) Residents, leaseholders, and persons on official business are exempt from the closure specified in (a) above. Leaseholders are restricted to their leased premises between 12:00 midnight and 4:00 A.M., except as provided in (c) below.

(c) During the hours from 12:00 midnight to 4:00 A.M., all persons on the beach shall be actively engaged in surf fishing. MSFV permit holders not fishing may park and remain in designated MSFV parking locations posted or directed by the Superintendent or designee. All others shall leave the park as soon as they stop surf fishing.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (c), substituted "Superintendent or designee" for "Officer-in-Charge".

N.J. Admin. Code § 7:2-16.6 MSFV suspension

(a) The Superintendent or designee may suspend for up to 90 days the MSFV permit of any person found in violation of any law including this chapter.

(b) No refunds will be made when suspension occurs.

History

• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Superintendent or designee" for "area Officer-in-Charge".

Subchapter 17 FEES FOR SERVICES AND FACILITIES PROVIDED BY THE STATE PARK SERVICE

N.J. Admin. Code § 7:2-17.1 Day use fees for services and facilities provided by the State Park Service

(a) Daily parking fees for automobiles at designated State parks, for the period beginning with Memorial Day weekend and ending on Labor Day inclusive, area as follows:

| Area | NJ Non-resident | NJ Resident | Non-resident | | | --- | --- | --- | --- | --- | | Resident Weekdays* | Weekdays* | Weekends and Holidays* | Weekends and Holidays* | | | 1. Allaire | $ 5.00 | $ 7.00 | | | | 2. Atsion | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 3. Bass River | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 4. Batsto | $ 5.00 | $ 7.00 | | | | 5. Belleplain | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 6. Cheesequake | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 7. High Point | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 8. Hopatcong | $ 6.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 9. Island Beach | $ 6.00 | $ 12.00 | $ 10.00 | $ 20.00 | | 10. Ringwood | $ 5.00 | $ 7.00 | | | | Manor | | | | | | 11. Skylands | $ 5.00 | $ 7.00 | | | | 12. Shepard Lake | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 13. Round Valley | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 14. Spruce Run | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 15. Stokes | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 16. Swartswood | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | 17. Washington | $ 5.00 | $ 7.00 | | | | Crossing | | | | | | 18. Wawayanda | $ 5.00 | $ 10.00 | $ 10.00 | $ 20.00 | | *At all State parks, forests, and recreation areas, the fee for an | | | | | | oversized vehicle shall be twice the fee for a vehicle that is not oversized. | | | | |

(b) At Island Beach State Park, for the period commencing on the day after Labor Day and ending on the day before Memorial Day Weekend, the daily day use parking fees are as follows:

| Vehicle | Fee | | --- | --- | | 1. Automobile* | $ 5.00 (NJ resident) | | $ 10.00 (non-resident) | | | 2. Motorcycle | $ 5.00 (NJ resident) | | $ 7.00 (non-resident) | | | 3. Bus (out-of-State groups) | $ 120.00/bus | | 4. Bus (in-State groups) | $ 65.00/bus | | *The fee for an oversized vehicle shall be twice the fee for a vehicle that is not oversized. | |

(c) Daily parking fees for motorcycles and buses at State parks, forests and recreation areas identified in (a) above, for the period beginning with Memorial Day weekend and ending on Labor Day inclusive, are as follows:

| Vehicle | Fee | | --- | --- | | 1. Motorcycle | $ 5.00 (NJ resident) | | $ 7.00 (non-resident) | | | 2. Bus (out-of-State groups) | $ 120.00/Bus | | 3. Bus (in-State groups) | $ 65.00/Bus |

(d) Each bus group shall pay a reservation deposit equal to $ 25.00 per bus, at the time the reservation is made. The deposit is refundable if the group cancels its reservations six or more calendar days prior to the reserved date; thereafter, the deposit is non-refundable.

(e) An annual parking pass for automobiles and motorcycles is available as follows:

| 1. | Area | NJ resident | Non-resident | | --- | --- | --- | --- | | All State parks, forests, and recreation areas* | $ 50.00 | $ 75.00 | | | *The fee for an annual pass for an oversized vehicle shall be twice the fee for a vehicle that is not oversized. | | | |

2. The fee for a second annual parking pass when purchased at the same time as the first annual parking pass is $ 25.00 for New Jersey residents, $ 35.00 for non-residents, and $ 50.00 for oversized vehicles.

(f) The daily or annual walk-in and bicycle fee for persons 12 years old and above at designated State parks, forests and recreation areas, for the period beginning with Memorial Day weekend and ending on Labor Day inclusive, is as follows:

| 1. Area | Daily Fee | Annual Walk-In and Bicycle Pass | | | --- | --- | --- | --- | | i. | Atsion | $ 2.00 | $ 50.00 | | ii. | Bass River | $ 2.00 | $ 50.00 | | iii. | Hopatcong | $ 3.00 | $ 50.00 | | iv. | Parvin | $ 2.00 | $ 50.00 | | Three years and under free | Three years and under free | | | | v. | Round Valley | $ 2.00 | $ 50.00 | | vi. | Spruce Run | $ 2.00 | $ 50.00 |

2. An annual walk-in and bicycle pass purchased at one of the State parks, forests and recreation areas listed in (f)1 above shall be honored for walk-in and bicycle admittance at any of the designated State parks, forests and recreation areas.

(g) The daily or annual launch ramp fee at designated State parks and marinas are as follows:

| Area | Daily Fee | Annual Fee | | --- | --- | --- | | 1. Leonardo State Marina | $ 20.00/launch (NJ resident) $ 25.00/launch (non-resident) | $ 170.00 (NJ resident) $ 200.00 (non-resident) | | 2. Liberty State Park | $ 20.00/launch (NJ resident) $ 25.00/launch (non-resident) | $ 170.00 (NJ resident) $ 200.00 (non-resident) | | 3. Corson's Inlet (beginning on Memorial Day weekend and ending on Labor Day inclusive) | $ 12.00/launch (NJ resident) $ 20.00/launch (non-resident) | $ 60.00 (NJ resident) $ 80.00 (non-resident) | | 4. Mullica River (beginning on Memorial Day Weekend and ending on Labor Day inclusive) | $ 12.00/launch (NJ resident) $ 20.00/launch (non-resident) | $ 60.00 (NJ resident) $ 80.00 (non-resident) | | 5. Hopatcong State Park (beginning on April 1 and ending on the Friday before Memorial Day Weekend, and beginning the day after Labor Day and ending on October 31) | $ 12.00/launch (NJ resident) $ 20.00/launch (non-resident) | $ 60.00 (NJ resident) $ 80.00 (non-resident) | | 6. D & R Canal (Bull's Island Recreation Area boat launches)(beginning on Memorial Day Weekend and ending on Labor Day inclusive) | $ 12.00/launch (NJ resident) $ 20.00/launch (non-resident) | $ 60.00 (NJ resident) $ 80.00 (non-resident) | | 7. Parvin (Fisherman's Landing) (beginning on Memorial Day Weekend and ending on Labor Day inclusive) | $ 12.00/launch (NJ resident) $ 20.00/launch (non-resident) | $ 60.00 (NJ resident) $ 80.00 (non-resident) |

(h) The fee for dry boat storage permits at designated State parks and recreation areas for the period from April 1 to October 31, issued pursuant to N.J.A.C. 7:2-8.9, is as follows:

| Area | Type | Fee | | --- | --- | --- | | Spruce Run | Single Boat Trailer | $ 250.00 (NJ resident) | | (Half Rate after August 1) | $ 295.00 (non-resident) | | | Spruce Run | Double Deck Boat Trailer | $ 325.00 (NJ resident) | | (Half Rate after August 1) | $ 370.00 (non-resident) | | | Corson's Inlet | Catamaran | $ 200.00 (NJ resident) | | (Half Rate after August 1) | $ 225.00 (non-resident) | | | Late Boat Removal Fee--$ 35.00 | | | | Late Boat Storage Fee--$ 20.00/Day | | | | Cancellation--$ 35.00/Day | | |

(i) The fee for dry boat storage permits for the period from November 1 to March 31, at designated State parks and recreation areas issued pursuant to N.J.A.C. 7:2-8.9, is as follows:

| Area | Type | Fee | | --- | --- | --- | | Spruce Run | Single Boat Trailer | $ 200.00 (NJ resident) | | $ 240.00 (non-resident) | | | | Spruce Run | Double Deck Boat Trailer | $ 260.00 (NJ resident) | | $ 320.00 (non-resident) | | |

(j) Except when parking fees are in effect pursuant to (a) and (c) above, a fee of $ 1.00 for each person age 12 and over shall be charged for admission to High Point Monument.

(k) The daily fee per person for admission to the Barnegat Lighthouse will be $ 3.00 for each person age 12 and over and $ 1.00 for each person age six through 11 for the period beginning Memorial Day weekend and ending on Labor Day.

(l) Fees for the Batsto, Ringwood Manor, Twin Lights, and Fort Mott Historic Tour are as follows:

| Age (years) | Fee | | --- | --- | | 1.Six through 11 | $ 1.00/person | | 2.12 and above | $ 3.00/person. |

(m) Fees for tours of the facilities at Washington Crossing State Park are as follows:

| 1.Museum/Ferry House | $ 1.00/person (Age 12 and over) | | --- | --- | | $ 1.00/person (Age six through 11) | |

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Administrative Change to (f).
• See: 27 N.J.R. 92(a).
• Administrative Change to (j).
• See: 27 N.J.R. 1404(b).
• Administrative change.
• See: 29 N.J.R. 126(a).
• In (f), raised fees.
• See: 29 N.J.R. 1308(a).
• In (j), raised fees for the Spring Meadow Golf Course effective 5/1/1997.
• Amended by R.2001 d.382, effective 10/15/2001.
• See: 33 N.J.R. 2235(a), 33 N.J.R. 3677(a).
• Rewrote (j).
• Amended by R.2003 d.349, effective 8/18/2003.
• See: 35 N.J.R. 1997(a), 35 N.J.R. 3835(c).
• Rewrote the section.
• See: 36 N.J.R. 5119(a).
• Amended by R.2005 d.300, effective 9/6/2005.
• See: 37 N.J.R. 1281(a), 37 N.J.R. 3340(a).
• Increased fees in (c), (f), (g), and (h).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote (b) and added parking fees; in (f), substituted "launch ramp fee" for "fee for boat launching" and rewrote launch ramp fees; in (j), rewrote fees for Spring Meadow Golf course; and added (m).
• See: 40 N.J.R. 6604(a).
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).

N.J. Admin. Code § 7:2-17.2 Overnight use fees for services and facilities provided by the State Park Service

(a) Camping and overnight facilities permit fees shall be as follows:

| Type | Fee | | --- | --- | | 1.Group campsites | $ 3.00/person/night based on the | | capacity of the campsite (NJ resident) | | | $ 5.00/person/night based on the | | | capacity of the campsite (non-resident) | | | 2.Family campsites | $ 20.00/night (NJ resident) | | $ 25.00/night (non-resident) | | | 3.Wilderness campsites | $ 17.00/night (NJ resident) | | $ 22.00/night (non-resident) | | | 4.Lean-tos | $ 35.00/night (NJ resident) | | $ 40.00/night (non-resident) | | | 5.Lean-tos (heated) | $ 40.00/night (NJ resident) | | $ 45.00/night (non-resident) | | | 6.Shelters | $ 48.00/night (NJ resident) | | $ 60.00/night (non-resident) | | | 7.Yurts | $ 35.00/night (NJ resident) | | $ 40.00/night (non-resident) | | | 8.Primitive campsites | $ 3.00/person per night (NJ resident) | | $ 5.00/person per night (non-resident) | | | 9.Commercial backpacking | $ 35.00/group per night at Wawayanda | | State Park, High Point State Park, | | | Stokes Forest, and Worthington State | | | Forest | |

(b) Camping facility permits issued to any New Jersey resident who is 62 or more years of age or is totally disabled shall receive a $ 2.00 per night reduction from the family campsite rates in (a)2 above.

(c) Cabin permit fees shall be as follows:

| Size and Type | Fee | | --- | --- | | 1. Four bunks | $ 55.00/night (NJ resident) | | $ 65.00/night (non-resident) | | | 2. Six bunks | $ 75.00/night (NJ resident) | | $ 85.00/night (non-resident) | | | 3. Eight bunks | $ 100.00/night (NJ resident) | | $ 110.00/night (non-resident) | | | 4. 12 bunks | $ 140.00/night (NJ resident) | | $ 150.00/night (non-resident) | | | 5. Group Cabin | $ 175.00/night (NJ resident) | | High Point 24 bunk, Belleplain 30 bunk | $ 185.00/night (non-resident) |

(d) Miscellaneous camping and overnight facilities fees:

| Type | Fee | | --- | --- | | 1. Camping cancellation fee | $ 40.00 or two nights stay,whichever is less (NJ resident) | | $ 50.00 or two nights stay, whichever is less (non-resident) | | | 2. Overnight facility cancellation fee | If cancelled seven days or less prior to the initial date of reservation, equivalent to the cost of a one night stay at the overnight facility reserved | | 3. Equipment removal fee | $ 40.00 (NJ resident) | | $ 50.00 (non-resident) | | | 4. Equipment storage fee | $ 20.00/night (NJ resident) | | $ 30.00/night (non-resident) | | | 5. Pet friendly camping | $ 5.00/night (in addition to applicable camping or overnight use fee) | | 6. Extra vehicle | $ 5.00/night |

History

• Amended by R.2003 d.249, effective 8/18/2003.
• See: 35 N.J.R. 1997(a), 35 N.J.R. 3835(a).
• Rewrote the section.
• Amended by R.2005 d.300, effective 9/6/2005.
• See: 37 N.J.R. 1281(a), 37 N.J.R. 3340(a).
• Increased fees in (a), (c), and (d).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• In (a), substituted "Camping and overnight facilities" for "Campsite", and added section 7 to permit fees table; in (b), substituted "Camping facility" for "Campsite"; and in (d), substituted "camping and overnight facilities" for "campsite and cabin" and increased fee in table entry 1.
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote the tables in (a), (c), and (d).

N.J. Admin. Code § 7:2-17.3 Miscellaneous fees for services and facilities when and where provided by the State Park Service

(a) Miscellaneous fees for services and facilities when and where provided by the State Park Service shall be as follows:

| Service | Fee | | --- | --- | | 1.Firewood: | 6.00/rack (equals 1/24 cord) | | 2.Commercial Photography | $ 325.00/day plus staff costs (except at Liberty State Park) | | 3.Commercial Videos/Advertisements | $ 425.00/day plus staff costs (except at Liberty State Park) | | 4.Commercial Movie | $ 1,025/day plus staff costs (except at Liberty State Park) | | 5.Student Video/Documentary | $ 55.00/day (requires a letter of request on official letterhead from a college, university, high school, and/or vocational school, signed by the student's instructor) | | 6.Homeowners Firewood/Permit | $ 25.00/cord | | 7.Clothes dryer | $ 1.50 | | 8.Clothes washer | $ 1.50 | | 9.Electric hookup | $ 5.00/night | | 10.Water hookup | $ 5.00/night | | 11.Organized group picnic: | | | i. Parking fee in effect (Cheesequake State Park, Spruce Run Recreation Area, and Washington Crossing State Park) | $ 100.00/day (NJ resident) plus applicable vehicle parking fee $ 150.00/day (non-resident), plus applicable vehicle parking fee | | ii. No parking fee in effect | $ 125.00/day (NJ resident) | | (Cheesequake State Park, Parvin State Park, Spruce Run Recreation Area, Voorhees State Park, and Washington Crossing State Park) | $ 175.00/day (non-resident) | | 12.Organized group picnic - without separate facilities: | | | i. Parking fee in effect (Bass River State Forest, Belleplain State Forest,High Point State Park, Stokes State Forest, and Swartswood State Park) | $ 55.00/day (NJ resident) plus applicable vehicle parking fee $ 65.00/day (non-resident) plus applicable vehicle parking fee | | ii. Parking fee not in effect | $ 80.00/day (NJ resident) | | (Brendan T. Byrne, Cape May Point State Park, Fort Mott State Park, High Point State Park, Stephens State Park, Stokes State Forest, and Swartswood State Park) | $ 90.00/day (non-resident) | | 13.Cancellation fee | 50 percent of fee | | 14.Special Use permit (non-commercial) | $ 60.00 plus staff administrative costs (NJ resident) $ 75.00 plus staff administrative costs (non-resident) | | 15.Special Use permit (commercial) | $ 150.00 plus staff | | administrative costs (NJ resident)$ 200.00 plus staff administrative costs (non-resident) | | | 16.Transient R/V trailer dumping fee | $ 20.00/dump (No fee for registered campers) (NJ resident)$ 30.00/dump (No fee for registered campers) (non-resident) | | 17.Programming | Maximum $ 25.00/person | | 18.Reserved group tour | | | i. (Age 12 and over) | $ 3.00/person | | ii. (Age six through 11) | $ 1.00/person | | 19.Conference facilities: | | | High Point Center | $ 500.00/day/event | | Center Region Center | $ 300.00/day/event | | 20.Off-site interpretive fee | $ 50.00/visit | | 21.Special event parking | $ 5.00/car | | 22.Allamuchy Mountain State Park | $ 1,200/day/event plus staff costs | | (Waterloo Village) Concert Field | | | 23.Allamuchy Mountain State Park | $ 400/day/event plus staff costs | | (Waterloo Village) grounds | | | 24.Staff costs | $ 60.00/hour/employee | | 25.Online reservation | $ 9.25/transaction (when available) | | 26.Online or Call Center reservation change | $ 7.00/transaction | | 27.Same day in person reservation | $ 5.00/transaction (when available) | | 28.Wi-Fi/Internet connection | $ 5.00/per stay (when available) |

(b) Miscellaneous fees for services and facilities provided by the State Park Service at Island Beach State Park are as follows:

| Service | Fee | | --- | --- | | 1. Annual mobile sport fishing vehicle permit | $ 195.00 (NJ resident)$ 225.00 (non-resident) | | 2. Three-day mobile sport fishing vehicle permit | $ 75.00 (NJ resident)$ 90 (non-resident) | | 3. Mobile sport fishing vehicle permit replacement fee | $ 25.00 |

(c) Miscellaneous fees for services and facilities provided by the State Park Service at Corson's Inlet State Park as follows:

| Service | Fee | | --- | --- | | 1. Annual mobile sport fishing vehicle permit | $ 50.00 (NJ resident)$75.00 (non-resident) | | 2. Mobile sport fishing vehicle permit replacement fee | $ 25.00 |

(d) Miscellaneous fees for services and facilities provided by the State Park Service at Liberty State Park are as follows:

| Service | Fee | | --- | --- | | 1. Use of Interpretive Center | $ 300.00/day/event plus staff costs | | 2. Central Railroad of New Jersey (CRRNJ) Terminal Waiting Room | $ 3,900/day/Event plus staff costs | | 3. CRRNJ Terminal Concourse | $ 2,200/day/event plus staff costs | | 4. CRRNJ Terminal Tunnels (North and South) plus staff costs | $ 580.00 each/day/event | | 5. Ticketed event at CRRNJ Terminal | 10 percent of gross revenue (plus any fees charged for rental of other areas of the CRRNJ Terminal as specified above) | | 6. CRRNJ Blue Comet Auditorium | $ 1,200/day/event plus staff costs | | 7. CRRNJ Riverside Conference Room | $ 700.00/day/event plus staff costs | | 8. CRRNJ Room 206A Classroom | $ 400.00/day/event plus staff costs | | 9. CRRNJ Room 206B Classroom | $ 500.00/day/event plus staff costs | | 10. CRRNJ Conference Room 306 (third floor,center room) | $ 800.00/day/event plus staff costs | | 11. Liberty Terminal Dock | $ 500.00 (one arrival and one departure) | | 12. Liberty Park Office Dock | $ 325.00 (one arrival and one departure) | | 13. North or South Field | $ 450.00/day/event plus staff costs | | 14. South Lawn or Freedom Field | $ 400.00 for one-half field $ 600.00 for full field | | 15. Small Freedom Field Picnic Pavilion | $ 125.00/day (NJ resident) | | $ 175.00/day (non-resident) | | | 16. Large Freedom Field Picnic Pavilion | $ 175.00 /day (NJ resident) $ 225.00/day (non-resident) | | 17. Green Park (Green Ring) (Commercial) | $ 10,000 plus a $ 200.00 per acre fee for any area outside of the Green Ring, plus $ 450.00/day setup for each day prior to the event and $ 450.00/day breakdown for each day after the event | | 18. Green Park (Green Ring) (Non-commercial) | $ 1,000 plus a $ 200.00 per acre fee for any area outside of the Green Ring, plus $ 450.00/day setup for each day prior to the event and $ 450.00/day breakdown for each day after the event | | 19. Special event parking, Liberty Reserve Parking Lot - daytime | $ 700.00 or $ 7.00/parking space/event (whichever is less) | | 20. Special event parking, Liberty Reserve Parking Lot - evening | $ 5.00 per vehicle | | 21. Special event parking, Liberty Ferry Parking Lot | $ 7.00 per vehicle | | 22. Special event parking, Liberty Science Center Parking Lot | $ 7.00 per vehicle | | 23. Concert Site | Five percent of all sales receipts (tickets and concessions) ($ 15,000 minimum), plus $ 450.00/day setup for each day prior to the event and $ 450.00/day breakdown for each day after the event | | 24. Commercial Photography | $ 2,500/day plus staff costs and other applicable fees | | 25. Commercial Movie | $ 2,500/day plus staff costs and other applicable fees | | 26. Commercial Video/Advertisement | $ 2,500/day plus staff costs and other applicable fees | | 27. Student Video | $ 55.00/day (requires a letter of request on official letterhead from a college, university, high school, or vocational school, signed by the student's instructor) |

(e) Miscellaneous fees for services and facilities provided by the State Park Service at Wharton State Forest are as follows:

| 1. Batsto Auditorium Fee | $ 200.00/day/event, plus staff costs | | --- | --- |

(f) Miscellaneous fees for services and facilities provided by the State Park Service at High Point State Park are as follows:

| 1. High Point Center | $ 500.00/day/event, plus staff costs | | --- | --- |

(g) Miscellaneous fees for services and facilities provided by the State Park Service at the State Park Service Central Region Office are as follows:

| 1. Central Region Center | $ 300.00/day/event, plus staff costs | | --- | --- |

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2003 d.349, effective 8/18/2003.
• See: 35 N.J.R. 1997(a), 35 N.J.R. 3835(c).
• Rewrote the section.
• Amended by R.2005 d.300, effective 9/6/2005.
• See: 37 N.J.R. 1281(a); 37 N.J.R. 3340(a).
• In (a), rewrote 2 and 3; increased fees in (a) and (d).
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Added (e).
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote the tables in (a) through (e); and added (f) and (g).

N.J. Admin. Code § 7:2-17.4 Fees for services and facilities provided by the State Park Service at State marinas

(a) Fees for services and facilities provided by the State Park Service at the Forked River State Marina are as follows:

1. Pleasure seasonal berthholder permit fee:

| Season | Fee | | --- | --- | | i. Summer (April 1 to October 31) | $ 70.00/foot length overall (NJ resident) | | $ 80.00/foot length overall | | | (non-resident) | | | ii. Winter (November 1 to March 31) | $ 32.00/foot length overall (NJ resident) | | $ 37.00/foot length overall | | | (non-resident) | |

2. Transient berthholder fee:

| Vessel Size | Daily | Monthly | | --- | --- | --- | | i. 40 feet and under | $ 3.00/foot length | $ 23.00/foot length | | overall (NJ resident) | overall (NJ resident) | | | $ 4.00/foot length overall | $ 28.00/foot length | | | (non- resident) | overall (non- resident) | | | ii. 41 feet and over | $ 3.00/foot length | $ 28.00/foot length | | overall (NJ resident) | overall (NJ resident) | | | $ 5.00/foot length overall | $ 30.00/foot length | | | (non-resident) | overall (non-resident) | |

3. Commercial berthholder fee (April 1 to October 31):

| i. Charter vessel Six passengers and under | $ 73.00/foot length | | --- | --- | | overall (NJ resident) | | | $ 80.00/foot length overall | | | (non-resident) | | | ii. Other commercial vessel | $ 73.00/foot length | | overall | |

(b) Fees for services and facilities provided by the State Park Service at the Leonardo State Marina shall be as follows:

1. Pleasure seasonal berthholder permit fee:

| Season | Fee | | --- | --- | | i. Summer (April 1 to October 31) | $ 80.00/foot length overall** | | (NJ resident) (Minimum Fee Based on Applicable Berth Length) | | | $ 90.00/foot length | | | overall** (non-resident) | | | (Minimum Fee Based on Applicable Berth Length) | |

** This fee shall be based on the designated size of each boat slip. Any boat with an overall length that exceeds the designated size of the boat slip shall pay a boat slip fee based on the overall boat length at the rate outlined above. Overall boat length shall include any swim and/or bow platforms(s).

| ii. Winter (November 1 to March 31) | $ 32.00/foot length overall (NJ resident) | | --- | --- | | $ 37.00/foot length | | | overall (non-resident) | |

2. Transient berthholder fee:

| Vessel Size | Daily | Monthly | | --- | --- | --- | | i. 40 feet and under | $ 3.00/foot length | $ 23.00/foot | | overall (NJ resident) | length overall (NJ resident) | | | $ 4.00/foot length overall (non-resident) | $ 28.00/foot length overall (non-resident) | | | ii. 41 feet and over | $ 3.00/foot length overall (NJ resident) | $ 28.00/foot length overall (NJ resident) | | $ 5.00/foot length overall (non-resident) | $ 30.00/foot length overall (non-resident) | |

3. Commercial berthholder fee (April 1 to October 31):

| i. Charter Vessel Six passengers and under | $ 105.00/foot based on berth | | --- | --- | | length. (NJ resident) 30-foot minimum berth length. | | | $ 125.00/foot based on | | | berth length. (non-resident) 30-foot minimum berth length. | | | ii. Other commercial vessel | $ 95.00/foot length overall (NJ resident) | | $ 100.00/foot length overall (non-resident) | |

(c) Fees for services and facilities provided by the State Park Service at the marina in South Seaside Park, Berkeley Township, Ocean County, are as follows:

1. Pleasure seasonal berthholder permit fee:

| Season | Fee | | --- | --- | | i. Summer (April 1 to October 31) | $ 80.00/foot* (NJ resident) | | $ 90.00/foot* (non-resident) | |

This fee shall be based on the designated size of each boat slip. Any boat with an overall length that exceeds the designated size of the boat slip shall pay a boat slip fee based on the overall boat length at the rate outlined above. Overall boat length shall include any swim and/or bow platform(s).

2. Transient berthholder fee:

i. $ 3.00/foot length overall, per day based on the availability of berths (NJ resident); $ 4.00/foot length overall, per day based on the availability of berths (non-resident).

(d) Miscellaneous fees for services and facilities provided by the State Park Service at State operated marinas shall be as follows:

1. A fee of 10 percent of the season's berth charge shall be charged for each berth cancellation; a fee of $ 112.00 shall be charged for each berth sublease.

2. Organized events consisting of 20 vessels or more shall be charged a fee of $ 139.50 a day for each event and the applicable daily transient fee for each vessel.

3. Summer season pleasure berthholder may extend the permit season for the month of November for a prorated fee of one-seventh of the summer permit fee.

4. Head/Large party vessel shall be restricted to the berth designated and shall be operated under a concession agreement.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Administrative Change to (a) and (b).
• See: 27 N.J.R. 92(a).
• Administrative change.
• See: 29 N.J.R. 126(a).
• In (b), raised fees.
• Amended by R.2003 d.349, effective 8/18/2003.
• See: 35 N.J.R. 1997(a), 35 N.J.R. 3835(c).
• Rewrote the section.
• Amended by R.2005 d.300, effective 9/6/2005.
• See: 37 N.J.R. 1281(a); 37 N.J.R. 3340(a).
• Increased fees in (a)-(c); modified fee for "Six passengers and under" in (b)3i.
• Amended by R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).
• Rewrote (b)1i; added new (c); and recodified former (c) as (d).
• See: 40 N.J.R. 6604(a).
• Amended by R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).
• Rewrote (a) through (c).

N.J. Admin. Code § 7:2-17.5 Adjustment of fees for services and facilities provided by the State Park Service

(a) Effective on January 1, 2004 and on each January 1 thereafter, the Department may increase the fees set forth in N.J.A.C. 7:2-17.1, 17.2, 17.3 and 17.4 for services and facilities provided by the State Park Service if the inflation factor for the previous 12 month period ending on September 30 increases. The inflation factor is based upon the United States Department of Labor, Bureau of Labor Statistics data published in the monthly Consumer Price Index Report. The data shall be taken from the most recent report available on October 1 each year and the actual percentage used shall be the past year percent change for the United States city average, all items, all urban consumers.

(b) In the event that the Department increases the fees for services and facilities provided by the State Park Service as allowed in (a) above, the amount of the increase shall be determined by multiplying the annual inflation factor times the base fee set forth in N.J.A.C. 17.1, 17.2, 17.3 and 17.4 above for the type of service or facility provided.

(c) In the event that the Department does increase the fees for services and facilities provided by the State Park Service as allowed in (a) above, each adjusted fee shall be rounded off to the next half of a dollar.

(d) The Department may establish fees for services and facilities that are lower than the fees set forth in N.J.A.C. 7:2-17.1, 17.2, 17.3 and 17.4 for said services or facilities by publishing a fee reduction notice in the New Jersey Register. The fee reduction shall be based on a determination by the Department that the fee reduction is necessary to encourage public access to and use of the service and facilities provided by the State Park Service and will not result in a reduction of the services and facilities available to the public. The reduced fees shall be effective upon publication of the fee reduction notice in the New Jersey Register.

(e) Fees for services and facilities provided by the State Park Service that have been reduced in accordance with (d) above may be increased in any amount by the Department upon publication of a notice of increase in the New Jersey Register provided the fee is not increased above the fee set forth in N.J.A.C. 7:2-17.1, 17.2, 17.3 or 17.4 for the service or facility.

(f) On or before December 1 of each year, the Department shall provide a public notice which shall set forth the increased fees, if any, established under (a) above and to be effective on the following January 1 for services and facilities provided by the State Park Service. The public notice shall be provided by the Department by publication of the notice in the New Jersey Register.

(g) In the event that the Department does not annually increase the fees for services and facilities provided by the State Park Service as allowed in (a) above, the annual percentage increase in the inflation factor, if any, shall be cumulative from year to year for a period not to exceed five years.

(h) The Department shall not use the procedure set forth in (a), (b), (c), (d) and (e) above to increase any fee for services and facilities provided by the State Park Service that has not been increased for a period exceeding five years.

History

• Amended by R.1993 d.657, effective 12/20/1993.
• See: 25 N.J.R. 2799(b), 25 N.J.R. 5953(a).
• Amended by R.2003 d.349, effective 8/18/2003.
• See: 35 N.J.R. 1997(a), 35 N.J.R. 3835(c).
• In (a), in first sentence substituted "January 1, 2004" for "January 1, 1991"; in (c), substituted "half" for "quarter" preceding "of a dollar"; in (g) and (h), substituted "five" for "three" preceding "years".

N.J. Admin. Code § 7:2-17.6 Fees for facilities or services not otherwise identified

(a) The fee for facilities or services for newly constructed or acquired facilities or facilities newly placed under the administration of the State Parks Service, or newly provided services at existing facilities, shall be the fees for similar facilities or services charged at the nearest State park at which similar facilities or services are provided, as determined by the Department. Such fees shall continue to be charged, subject to adjustment as provided in N.J.A.C. 7:2-17.5, until such time as the Department adopts a specific fee schedule for such facilities or services.

(b) The Department shall publish notice of the fee in the New Jersey Register, and at the facility at issue.

History

• New Rule, R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).

N.J. Admin. Code § 7:2-17.7 Sales tax

The fees set forth in this subchapter do not include applicable sales tax. Applicable sales tax, if any, shall be posted with the fee schedule at the point of sale.

History

• New Rule, R.2007 d.155, effective 5/7/2007.
• See: 38 N.J.R. 4779(a), 39 N.J.R. 1701(a).

N.J. Admin. Code § 7:2-17.8 Eligibility for a fee applicable to a New Jersey resident

(a) If a fee differs between a New Jersey resident and a non-resident, the following shall be eligible for a fee applicable to a New Jersey resident:

1. For a parking fee:

i. A motor vehicle with a New Jersey license plate; or

ii. A person who is a resident of New Jersey, as evidenced by a valid government-issued identification;

2. For a per person fee or permit, a person who is a resident of New Jersey, as evidenced by a valid government-issued identification;

3. For a fee associated with a boat, canoe, or other vessel:

i. A boat, canoe, or other vessel with a New Jersey registration marked on the hull; or

ii. A person who is a resident of New Jersey, as evidenced by a valid government-issued identification;

4. For a fee associated with an overnight facility (other than a group reservation), a person who is a resident of New Jersey, as evidenced by a valid government-issued identification; and

5. For a fee associated with a group reservation or permit, a group whose reservation or permit application is made by a person who is a resident of New Jersey, as evidenced by a valid government-issued identification. The New Jersey resident making the reservation or applying for the permit shall be among the group for the group to be eligible for the New Jersey resident fee.

(b) If a valid government-issued identification is required under (a) above, the person claiming New Jersey residency shall have the identification available on his or her person for inspection by State Park Service employees at the time the person or group makes use of State facilities.

History

• New Rule, R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).

N.J. Admin. Code § 7:2-17.9 Exemptions from fees

(a) No daily parking fee for automobiles and motorcycles and no daily walk-in fee shall be charged to a New Jersey resident who is:

1. Aged 62 and over;

2. Totally disabled;

3. An active member of the New Jersey National Guard who has completed initial active duty training; or

4. A veteran attending an event by a veterans' organization at a State Park or forest.

(b) The Department shall not charge a facilities fee of any kind to any veterans' organization using a State Park or forest for an event.

History

• New Rule, R.2014 d.031, effective 2/18/2014.
• See: 44 N.J.R. 1935(a), 44 N.J.R. 2269(a), 46 N.J.R. 335(b).

Chapter 3 FORESTRY

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:3-1.1 Construction

(a) The provisions of this chapter shall be liberally construed to permit the Department to discharge its statutory functions.

(b) The provisions of this chapter are not intended to, and do not, relieve any person of the duty to comply with all applicable State or Federal statutes, rules, and regulations, or the terms of any easement or other legal obligation.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-1.2 Severability

If any section, subsection, provision, clause, or portion of this chapter, or the application thereof to any person or circumstance, is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the section, subsection, provision, clause, portion, or application directly involved in the controversy in which such judgment shall have been rendered and it shall not affect or impair the remainder of this chapter or the application thereof to other persons or circumstances.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Age" means, with respect to a stand:

If the stand is even aged, the mean age of the trees calculated from the year of the stand's establishment; and

2. If the stand is uneven aged, the mean age of the dominant or, if applicable, co-dominant tree species in the stand.

"Age class" means an interval into which the age range of trees is divided for classification or utilization.

"Age-class distribution" means, with respect to a stand, the location or proportionate representation, or both, of different age classes in the stand.

"Agroforestry" means a system of land management that involves deliberate mixture of trees or other woody perennials with crop and animal production to take advantage of economic or ecological interactions among the components.

"Approved Forester" means an individual whose name is on the List of Approved Foresters.

"Basal area" means the cross-sectional area of:

1. With respect to a single tree, its stem, including the bark, measured at breast height (4.5 feet above the ground), typically expressed in square feet or square meters; and

2. With respect to a stand, or all trees of one or more specified species within the stand, all the trees, measured at breast height (4.5 feet above the ground), typically expressed in square feet or square meters per acre or per other unit of land area.

"Biomass" means, with respect to a stand at a given time, the vegetative matter in the stand and is typically expressed in units of volume of wet or dry weight per acre. Depending on the context in which it is used, this term may apply to all vegetative matter in the stand collectively or to a component of the stand, such as a given species of trees or a harvestable forest product.

"Canopy cover" means the proportion of the forest floor covered by a vertical projection of the tree crowns, and is expressed as a percent of an area of forest land.

"Commissioner" means the Commissioner of the Department.

"Contiguous" shall have the same meaning as defined for this term in the Department of the Treasury's Farmland Assessment Act rules at N.J.A.C. 18:15 , except that no easement that crosses a property and that is held by a public utility or other public entity shall be deemed to disrupt the property's contiguity.

"Critical habitat" shall, with respect to a Federally listed threatened or endangered species, have the same meaning as defined for this term in Section 3 of the Endangered Species Act of 1973, 16 U.S.C. § 1532.

"Crown" means the part of a tree or woody plant bearing live branches and foliage.

"Crown class" means a category of tree based on its crown position relative to those of adjacent trees. Examples of such classes include dominant, co-dominant, intermediate, and overtopped.

"Department" means the Department of Environmental Protection.

"Destruction or adverse modification" shall, with respect to a Federally listed threatened or endangered species, have the same meaning as defined for this term in the USFWS's Endangered Species Committee regulations at 50 CFR 402.02.

"Diameter at breast height" or "DBH" means the diameter of the stem of a tree measured at breast height (4.5 feet above the ground).

"Diameter class" or "DBH class" means any of the intervals into which a range of diameters of tree stems or logs may be divided for classification and utilization.

"Ecosystem service" means a service rendered by an ecosystem that benefits people. It is specifically a service that is useful to man, as follows:

1. A provisioning service, such as clean air, fresh water, energy, fuel, forage, or fiber;

2. A regulating service, such as long-term storage of carbon; climate regulation; water filtration, purification, or storage; soil stabilization; flood control; or disease regulation;

3. A supporting service, such as pollination, seed dispersal, soil formation, or nutrient cycling; or

4. A cultural service, such as an educational, aesthetic, spiritual, or cultural heritage value, recreational experience, or tourism opportunity.

"Farmland assessment" means valuation, assessment, and taxation of land under the Farmland Assessment Act.

"Farmland Assessment Act" means the Farmland Assessment Act of 1964, N.J.S.A. 54:4-23.1 et seq., and any subsequent amendments.

"Federal guidelines plan" means a plan that was approved by the Department prior to December 18, 2017, as satisfying the requirements for forest stewardship plans in the National Forest Stewardship Guidelines.

"Federally listed threatened or endangered species" means a species listed with a status of "endangered" or "threatened" on the List of Endangered and Threatened species promulgated by the USFWS or other Federal agency pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq.

"Flood hazard area" shall have the same meaning as defined for this term in the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-1.2.

"Forest health" means the perceived condition of a forest or a stand derived from concerns about such factors as its age, structure, species composition, function, vigor, presence of unusual levels of insects or disease, and resilience to disturbance.

"Forest inventory" means, with respect to a stand, a characterization of the stand based on data collected from a systematic survey of the stand that:

1. Is designed to provide information about the condition of the stand for use in planning for the management of the stand;

2. Is conducted in accordance with accepted forestry sampling methods; and

3. May be used to show the rate of change of forest parameters and the dynamics of the stand through comparison with data collected in one or more prior inventories, if available.

"Forest management" means the practical application of biological, physical, quantitative, managerial, economic, social, and policy principles to the regeneration, management, utilization, and conservation of forest land or of a stand to meet specified goals and objectives while maintaining its sustainability.

"Forest productivity" means, with respect to an objective in a forest stewardship plan, the rate of progress toward the desired future condition or outcome. This rate could be a positive or negative value. As an example, if the objective is:

1. To produce woody biomass, this term could be expressed as the net average annual change in the amount of woody biomass, given in cubic feet, board feet, cords, or weight of biomass per acre; or

To manage the forest ecosystem so as to enhance a population of a State-listed endangered plant species, such as the Pine Barren Gentian ( Gentiana autumnalis ), this term could be expressed as the net average annual change in the number of individual plants in the population or in the extent of the population, given in units of area such as square feet.

"Forest stewardship plan" means a plan that is prepared and implemented by an owner of forest land and is approved by the Department as conforming to the requirements of N.J.A.C. 7:3-5.

"Forest type" means a category of forest defined by its vegetation, particularly its dominant vegetation as based on percentage cover of trees. Examples of such a category include pine, oak/pine, pine/oak, oak/hickory, oak, maple/beech/birch, maple/gum, pitch pine, and Atlantic white-cedar.

"Full stocking" means, with respect to a stand, a stocking level within the range that, for a management objective of producing trees for harvesting, represents optimal occupancy to maximize the growth potential of the stand.

"Goal" means a broad, general statement, usually not quantifiable, that expresses a desired end state to be achieved.

"Ground cover" means the herbaceous plants, including, but not limited to, grasses and ferns, and the lowest shrubs occupying an area.

"Harvesting" means the cutting, gathering, and removal of trees or other forest product from a forest or stand in preparation for its processing, transport, sale, and/or utilization.

"Highlands Region" shall have the same meaning as defined for this term in the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38-1.4.

"Individual" means a single human being.

"Invasive species" means a non-native species that has been introduced into a habitat and geographical area outside of its natural geographical range and that has the ability to reproduce prolifically and spread with little or no natural control, thereby displacing native biological diversity and threatening the integrity of natural ecosystems.

"Landlocked" means, with respect to the subject property:

1. Title to each of the properties surrounding the subject property is in the name of an owner other than the owner of the subject property; and

2. The owner of the subject property does not hold a right of way or other easement granting legal access to the subject property from a public roadway.

"List of Approved Foresters" means the list, established and maintained by the Department in accordance with N.J.A.C. 7:3-3.

"Litter" means the surface layer of the forest floor that is not in an advanced stage of decomposition, usually consisting of freshly fallen leaves, needles, twigs, stems, bark, and fruits.

"Local government unit" means a municipality, county, or other political subdivision of the State, or any agency, board, commission, public utility authority or other authority, or other entity thereof.

"Lot" shall have the same meaning as defined for this term in the Municipal Land Use Law at N.J.S.A. 40:55D-4.

"Monitor" or "monitoring" means, with respect to a forest stewardship plan, collection of information over time, generally on a sample basis by measuring change in the value of one or more parameters, to determine the extent to which the implementation of the plan is resulting in progress toward one or more of the plan's objectives.

"National Forest Stewardship Guidelines" means the guidance document entitled, "Forest Stewardship Program National Standards and Guidelines," issued by Cooperative Forestry, State & Private Forestry, USDA Forest Service, revised October 2015, as supplemented, amended, or periodically revised. The USDA Forest Service has supplemented this document through its issuance of the "Forest Stewardship Management Plan Resource Elements" (July 2013). Both of these documents are available at http://www.fs.usda.gov/managing-land/forest-stewardship/program.

"National Register of Historic Places" shall have the same meaning as defined for this term in the New Jersey Register of Historic Places rules at N.J.A.C. 7:4-1.3, Definitions.

"Native" means, with reference to a species of plant, animal, or other living organism, occurring naturally within a region, either evolving there or arriving and becoming established without human assistance.

"Natural Heritage Database" means the manual and computerized file maintained by the Department that includes continuously updated information on the location and status of rare species and ecological communities in New Jersey.

"New Jersey Register of Historic Places" shall have the same meaning as defined for this term in the New Jersey Register of Historic Places rules at N.J.A.C. 7:4-1.3, Definitions.

"Nonprofit" means an organization or corporation that has applied for and received a determination letter from the U.S. Department of the Treasury granting exemption from Federal income tax under Section 501(c)(3) of the Federal Internal Revenue Code .

"Objective" means a concise, time-specific statement of a measurable planned result that corresponds to one or more pre-established goals in achieving a desired future condition or outcome. In a woodland management plan or a forest stewardship plan, such a statement forms the basis for further planning to define the prescriptions and practices to be undertaken and the resources to be used.

"Overstory" means, with respect to a stand with forest of more than one story, that portion of the trees forming the upper or uppermost canopy layer.

"Owner" means the person or persons who own a property.

"Person" means any individual, government unit, nonprofit, corporation, partnership, organization, association, or other entity.

"Pinelands Area" shall have the same meaning as defined for this term in the Pinelands Comprehensive Management Plan at N.J.A.C. 7:50-2.11.

"Practice" or "management practice" means a specific activity, measure, course of action, or treatment carried out under a plan and directed to progressing toward one or more objectives set in the plan. For a woodland management plan or a forest stewardship plan, examples include, but are not limited to, site preparation, planting, pruning, or thinning.

"Prescription" means a planned series of management practices.

"Privately held" means, with respect to a property, owned by a person who is not a Federal or State entity or a local government unit.

"Property" means lands comprised of all contiguous lots that are owned by the same owner; or, if the same owner owns no other contiguous lot, a single lot.

"Public utility" shall have the same meaning as defined for this term in the Department of Public Utilities Act of 1948 at N.J.S.A. 48:2-13.a.

"Regeneration" means, with respect to a stand, the process of renewal of the stand and is indicated by seedlings or saplings present, whether established naturally or artificially.

"Riparian zone" shall have the same meaning as defined for this term in the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-1.2.

"Site index" means a value indicating the capability for trees of a specific species (usually the dominant or co-dominant species) to grow at a given site. Site index is expressed in terms of the average height, in feet, to which trees of that species are expected to grow in 50 years, and is used as an indicator of the potential capacity or ability of the site to produce woody biomass.

"Site preparation" means hand or mechanized manipulation of a site, designed to enhance the success of regeneration, and may include bedding, burning, chemical spraying, chopping, disking, drainage, raking, and scarifying in order to modify the soil, litter, or vegetation and to create microclimate conditions conducive to the establishment and growth of desired species.

"Size class" means, with respect to trees within a forest or stand, a classification of the trees based on their size. Examples include seedling, sapling, pole, and sawtimber.

"Society of American Foresters Code of Ethics" means the Code of Ethics adopted by the Society of American Foresters, November 3, 2000, or successor code, as supplemented or amended. This code may be downloaded from the Society's website, http://www.eforester.org/CodeofEthics.aspx, or requested from the Society at the following address:

Society of American Foresters

5400 Grosvenor Lane

Bethesda, Maryland 20814

"Species composition" means, with respect to a stand or other area of land, the species that constitute the plant community within that stand or area. When used with respect to silviculture, this term means the proportion of each tree species expressed as a percentage of the total number, basal area, or volume of all tree species in the stand or area.

"Species of special concern" means:

1. A taxon listed by the Department as a species of concern pursuant to the Endangered Plant Species Program rules at N.J.A.C. 7:5C-3.1; or

2. A species listed in the Wildlife Action Plan, issued by the Department pursuant to the USFWS's Wildlife Conservation and Restoration Program, as a species of greatest conservation need.

"Stand" means, with respect to a forest stewardship plan, an area of land that is:

1. Continuous in its range or extent; and

Designated as a distinguishable unit for the purpose of forest management, based on a judgment that its trees are sufficiently uniform in age-class distribution, species composition, and/or structure and that the land is of sufficiently uniform quality.

"Stand table" means:

1. A table that, for a stand, lists the number of trees by species and diameter classes, per acre or other unit of area; or

A chart presenting the data in paragraph 1 above in the form of a frequency distribution.

"State entity" means a department, agency, or office of State government, including a State university or college, or an authority created by the State of New Jersey.

"State Forester" means the chief forester employed by the Department, or his or her designee.

"State-listed threatened or endangered species" means one of the following:

1. An animal species or subspecies listed and assigned a conservation status of threatened pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq.;

2. An animal species or subspecies listed and assigned a conservation status of endangered species pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-13 et seq.; or

3. A plant taxon listed as an endangered species pursuant to the Endangered Plant Species List Act, N.J.S.A. 13:1B-15 .151 et seq.

"Stewardship goal" means, with respect to forest land, a goal intended to enable the land and its natural resources to be passed on to future generations in a healthy condition. This term shall include the goal of ensuring the sustainability of the forest land.

"Stock table" means a table that lists the proportions of total volume of wood content of the trees within a stand by diameter classes, and is generally expressed as units per acre or other unit of area, where the units are, for example, cubic foot volume, board foot volume, cords, or tons.

"Stocking level" means the growing-space occupancy of land by trees within a stand or within another specified area of land. This term is expressed quantitatively as an indication of density and can be given in absolute terms, such as number of trees, basal area or volume per unit of area, or relative to some standard condition, such as a percentage of full stocking.

"Structure" means, with respect to a stand, the horizontal and vertical distribution of the woody and herbaceous components of the stand including:

1. For the trees, the height, crown layers, stem diameter classes, and number of stems per acre;

2. Whether snags and/or downed woody debris are present, and if so their amount; and

3. The species composition and density of the shrubs and herbaceous understory.

"Sustainability" means, with respect to forest land, having the ability to:

1. Maintain its ecological processes, biodiversity, resource productivity, regeneration capacity, and vitality;

2. Promote forest health, preclude the spread of invasive non-native species, maintain forest integrity and contiguity, conserve New Jersey's native biodiversity, and protect Federally listed and State-listed threatened or endangered species and species of special concern, and the habitat that sustains them; and

3. Realize the potential to fulfill now and for future generations, relevant ecological, environmental, economic, and social functions, including, but not limited to, protection and improvement of air quality and of water supply and water quality, stabilization of soils, prevention and suppression of uncontrolled wildfires, service of markets for forest products, provision of recreational opportunities, and improvement of quality of life.

"Sustainable manner" means employing management practices for the use and care of forest land that promote sustainability of the forest land and do not cause damage to other components of the ecosystem, and avoiding acts and omissions that undermine sustainability.

"Transition area" shall have the same meaning as defined for this term in the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-1.4.

"Tree" means a woody perennial plant, typically large and with a well-defined stem or stems carrying a more or less definite crown, attaining at maturity a minimum diameter at breast height of five inches and a minimum height of 15 feet.

"Understory" means, with respect to a stand, all forest vegetation growing under an overstory, including the ground cover.

"USDA" means the United States Department of Agriculture.

"USFWS" means the United States Department of the Interior's Fish and Wildlife Service.

"Volume" means:

1. With respect to a single tree, an estimate of the wood content of the tree, generally expressed in cords or board feet; and

2. With respect to all the trees in a forest or stand, or all trees of one or more specified species within a forest or stand, the wood content of the trees, generally expressed in tons, cords, or board feet.

"Woodland data form" shall have the same meaning as defined for this term in the Department of the Treasury's Farmland Assessment Act rules at N.J.A.C. 18:15 .

"Woodland management plan" means a plan prepared in accordance with the criteria set forth in the Department of the Treasury's Farmland Assessment Act rules at N.J.A.C. 18:15-2.10.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-1.4 Submissions and communications

(a) Subject to (b) below, and except as provided at N.J.A.C. 7:3-5.9(b)2, paper submissions and other paper communications may be conveyed to the New Jersey Forest Service at the following address:

New Jersey Forest Service

Department of Environmental Protection

Mail Code 501-04

501 East State Street

PO Box 420

Trenton, New Jersey 08625-0420

(b) The Department shall inform the public, by notice in the New Jersey Register, that the Department has established a portal or other mechanism for electronic submittal of one or more documents pursuant to this subchapter. Notwithstanding (a) above, and except as set forth in (c) below, the Department will not accept paper submissions of the document identified in the notice on and after a date specified in the notice; rather, all such submittals shall be electronic through the method the Department establishes. The period between the date of publication of the notice and the date specified on and after which a document must be submitted electronically shall not exceed:

1. For a Forest Stewardship Plan or plan conversion, one year;

2. For a Forest Stewardship Plan amendment or a semi-annual report required pursuant to N.J.A.C. 7:3-3.6, six months; and

3. For any other type of document, three months.

(c) A person submitting a document electronically shall, upon the request of the Department, also provide a paper copy of all or a portion of the document, if:

1. The submission is insufficiently legible in electronic format;

2. A paper copy is needed for review or field use, such as for collaboration with assessors or other governmental officials, on-site inspections, or documentation of annotations;

3. Only an original document provided on paper can satisfy the requirement, such as the requirement at N.J.A.C. 7:3-3.2(b)2 to provide certified copies of transcripts with an application for inclusion on the List of Approved Foresters; or

4. The electronic portal is not functioning.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-1.5 Reserved

History

• As amended, R.1971 d.189, effective 10/21/1971.
• See: 2 New Jersey Register 83(b), 3 New Jersey Register 221(c).
• Repealed by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Refusal".
• The adopted version of this section 57 N.J.R. 29(a), effective 1/6/2025 is not yet available.

N.J. Admin. Code § 7:3-1.6 Reserved

History

• Repealed by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Distribution".

Subchapter 2 FORESTATION PROGRAM OF THE NEW JERSEY STATE FOREST NURSERY

N.J. Admin. Code § 7:3-2.1 Scope and authority

Unless otherwise provided by rule or statute, the provisions of this subchapter shall constitute the rules of the Department, pursuant to the State Park and Forestry Resources Act, N.J.S.A. 13:1L-1 et seq., governing the State's forestation program, as it pertains to the distribution by the Department of forestation stock, including seeds and seedlings, and to the use of that stock.

History

• New rule R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).

N.J. Admin. Code § 7:3-2.2 Distribution of forestation stock to New Jersey landowners

(a) Any New Jersey landowner or his or her authorized representative may obtain forestation stock from the Department, provided that the landowner or the landowner's representative complies with the requirements of this subchapter.

(b) The landowner or his or her authorized representative who orders forestation stock shall complete an order form obtained from the Department and submit the form to:

New Jersey Forest Tree Nursery

370 East Veteran's Highway

Jackson, New Jersey 08527

ATTN: Forestation Stock Order

(c) The landowner or his or her authorized representative shall certify on the order form that:

1. The forestation stock shall be planted in the State of New Jersey on the landowner's property;

2. The forestation stock shall be used only for one or more of the purposes set forth at N.J.A.C. 7:3-2.4; and

3. The forestation stock shall not be resold or removed from the property, whether as live trees or severed from the stump, for:

i. Ornamental use; or

ii. Use as Christmas trees or holiday decorations.

(d) Except as specified in (c)3 above, a landowner who obtains forestation stock under this subchapter may remove and/or resell forestation stock for use as merchantable forest products.

History

• As amended, R.1971 d.189, effective 10/21/1971.
• See: 2 New Jersey Register 83(b), 3 New Jersey Register 221(c).
• Recodified from N.J.A.C. 7:3-1.4 and amended by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Rewrote the section. Former N.J.A.C. 7:3-2.2, Purpose, recodified to N.J.A.C. 7:3-3.2.

N.J. Admin. Code § 7:3-2.3 Compliance

(a) The Department may inspect any planting site to ensure compliance with this subchapter, after notifying the landowner as to date and time of the inspection.

(b) If the Department determines that a landowner has used forestation stock in a manner that does not conform with this subchapter, the landowner shall reimburse the Department for:

1. The market value, at the time of sale, of any forestation stock obtained from the Department that is improperly used; and

2. The administrative costs incurred by the Department consequent to the compliance inspection.

(c) The Department shall not provide forestation stock to any person who has violated the provisions of this subchapter, unless the Department has been fully compensated in accordance with (b) above.

History

• Amended by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Rewrote the section.

N.J. Admin. Code § 7:3-2.4 Permitted uses of forestation stock

(a) Except as provided in N.J.A.C. 7:3-2.2(c)3, forestation stock may be used for any forestation purpose, including, but not limited to:

1. The forestation of land;

2. Increasing the density of tree cover;

3. Production of lumber, cordwood, or pulpwood;

Production of renewable energy resources;

5. The displacement of invasive species or the introduction of native species;

6. Forest stewardship, conservation, and protection of forest health;

7. Conservation and environmental education programs; and

8. Securing any of the benefits associated with the growing of trees, including, but not limited to:

i. Watershed protection and aquifer recharge;

ii. Plantings for aesthetic screening or other aesthetic improvement;

iii. Air and noise pollution abatement;

iv. Provision of wildlife habitat;

v. Erosion control;

vi. Carbon sequestration;

vii. Energy conservation; and

viii. Provision of opportunities for passive recreation, such as hiking or bird watching.

(b) The Department will distribute a seed or seedling, free of charge, to every New Jersey student attending third grade if:

1. Adequate supplies are available; and

2. The student's school has submitted to the Department a consolidated request for the seed or seedlings.

History

• As amended, R.1971 d.189, effective 10/21/1971.
• See: 2 New Jersey Register 83(b), 3 New Jersey Register 221(c).
• Amended by R.1998 d.356, effective 7/20/1998.
• See: 30 New Jersey Register 759(a), 30 New Jersey Register 2659(a).
• In (a), added "in New Jersey" at the end of the introductory sentence.
• Recodified from N.J.A.C. 7:3-1.6 and amended by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Rewrote the section. Former N.J.A.C. 7:3-2.4, Severability, repealed.

N.J. Admin. Code § 7:3-2.5 Reserved

History

• Repealed by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Definitions".

N.J. Admin. Code § 7:3-2.6 Reserved

History

• Recodified to N.J.A.C. 7:3-3.3 by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Application procedure".

N.J. Admin. Code § 7:3-2.7 Reserved

History

• Recodified to N.J.A.C. 7:3-3.4 by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Qualifications for entry on the list of approved foresters".

N.J. Admin. Code § 7:3-2.8 Reserved

History

• Recodified to N.J.A.C. 7:3-3.5 by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Deletion from list of approved foresters".

N.J. Admin. Code § 7:3-2.9 Reserved

History

• Recodified to N.J.A.C. 7:3-3.7 by R.2005 d.16, effective 1/3/2005.
• See: 36 New Jersey Register 3384(a), 37 New Jersey Register 47(b).
• Section was "Appeal from adverse determination on entry or deletion from list of approved foresters".

Subchapter 3 LIST OF APPROVED FORESTERS

N.J. Admin. Code § 7:3-3.1 Scope and purpose

(a) This subchapter constitutes the rules of the Department governing the establishment and maintenance of a list of foresters approved by the Department, which is necessary to implement the Farmland Assessment Act at N.J.S.A. 54:4-23.3.b.

(b) This subchapter sets forth the procedure and criteria for an individual to become an Approved Forester, the authority granted to, and the responsibilities required of, an Approved Forester, the grounds for which an individual may be removed from the list and the procedure for removal, and the conditions and procedures for reinstatement to the list.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.2 Application procedure, qualifications, and approval criteria

(a) Any individual who meets the qualifications of (c) below may apply for inclusion on the List of Approved Foresters by submitting an application to the New Jersey Forest Service in accordance with N.J.A.C. 7:3-1.4.

(b) An application submitted pursuant to (a) above shall include:

1. A completed and signed application on a form obtained from the Department. The form is available electronically at www.forestry.nj.gov and a paper copy may be requested from the New Jersey Forest Service at the address at N.J.A.C. 7:3-1.4(a). The information to be submitted on or with the application form includes the following:

i. The name, address, telephone number and email address (if available) of the applicant;

ii. A list of education and/or training completed demonstrating the applicant's fulfillment of the requirements at (c)1 below; and

iii. A history of experience demonstrating the applicant's fulfillment of the requirements at (c)2 below;

A certified copy of the applicant's transcript from each post-secondary school the applicant attended; and

3. Copies of two plans prepared by the applicant. A plan may be a woodland management plan prepared pursuant to N.J.A.C. 18:15-2.10, a forest stewardship plan prepared pursuant to N.J.A.C. 7:3-5, or a Federal guidelines plan, or an equivalent plan prepared for a property in another state.

(c) The minimum qualifications an applicant shall demonstrate are the following:

1. Education that includes one of the following earned (not honorary) degrees:

i. A bachelor's degree from a college or university in a forest management or equivalent forestry program that is accredited by the Society of American Foresters;

ii. A bachelor's degree from Rutgers-the State University in the forest management option within the natural resource management curriculum awarded no later than 2007; or

iii. A graduate degree from a college or university in a program that the Department determines to be at least equivalent to the bachelor's degree programs referenced at (c)1i above; and

2. Two years' experience in forest management or equivalent employment, beginning not earlier than the time of registration for the degree program specified pursuant to (c)1 above, including:

i. Preparing woodland management plans, forest stewardship plans, Federal guidelines plans, and/or equivalent plans prepared for property in another state; and

ii. Carrying out management practices commonly included in such plans, such as thinning, planting, invasive species control, and/or the harvesting and marketing of forest products.

(d) Prior to approving an application, the Department shall require an applicant to demonstrate a basic knowledge of farmland assessment and how an owner can qualify a property's forest land for valuation, assessment, and taxation under farmland assessment.

(e) The Department shall notify the applicant in writing of the approval or denial of the application for inclusion on the List of Approved Foresters. If the Department approves the application, the name of the applicant shall be entered on the List of Approved Foresters. If the Department denies the application, the notification shall include the basis for the Department's denial and inform the applicant of the procedure to request an adjudicatory hearing on the denial in accordance with N.J.A.C. 7:3-3.9.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.3 Professional services of an Approved Forester

(a) An Approved Forester is authorized to provide an owner the following professional services:

1. Preparing for, or in consultation with, the owner:

i. A forest stewardship plan, plan amendment, or plan conversion, in accordance with N.J.A.C. 7:3-5; or

ii. A woodland management plan or plan amendment in accordance with the Farmland Assessment Act rules at N.J.A.C. 18:15-2.10; and

2. Provided that the requirements of (b) below are satisfied, signing the certification of compliance with the approved plan on a woodland data form that accompanies an owner's annual application for farmland assessment, pursuant to the Farmland Assessment Act rules at N.J.A.C. 18:15-2.7.

(b) An Approved Forester shall certify a woodland data form if he or she has made the following determinations:

1. The owner has a Department-approved forest stewardship plan or woodland management plan that applies to the property and has not expired;

2. The woodland data form is the version prescribed for use in that calendar year by the Director of the Division of Taxation in New Jersey's Department of the Treasury, available at www.nj.gov/treasury/taxation/prntlpt.shtml;

3. The form is fully and properly completed and the information provided is true and accurate; and

4. The management of the property is in conformance with the plan.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.5 Continuing education

(a) An Approved Forester shall participate at least annually in a program of professional education that is:

1. Designed to enable the forester to maintain or develop new forestry skills, obtain updated information on forest management topics, and/or earn or retain certification relevant to offering professional services as an Approved Forester; and

2. Offered by the Society of American Foresters, Rutgers - The State University of New Jersey, the USDA Forest Service, or the New Jersey Forest Service, or in a comparable program offered by another provider and approved by the Department as appropriate for satisfying this requirement.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.6 Semi-annual reports

(a) An Approved Forester shall submit a report semi-annually to the New Jersey Forest Service to document professional activities and the implementation of management practices during the preceding six-month reporting period (January 1 through June 30 or July 1 through December 31, as applicable).

(b) The Approved Forester shall:

1. Prepare the semi-annual report on a form available from the New Jersey Forest Service;

2. Sign and date the report; and

3. Submit the completed form by February 15th and September 15th each year, in accordance with N.J.A.C. 7:3-1.4.

(c) The Approved Forester shall provide the following in the semi-annual report:

1. The Approved Forester's contact information and credentials, and the services the Approved Forester offers, and information related to the Approved Forester's professional education and experience, which the Department will make available to the public in its online List of Approved Foresters;

2. Information pertaining to the properties for which the Approved Forester has, during the reporting period, served as the owner's forestry consultant in the preparation or implementation of a woodland management plan, forest stewardship plan, or other type of forestry plan, including the following:

i. The number of plans that the Approved Forester prepared and/or certified, and that the Department approved during the reporting period, and the total acreage of forest land covered by these plans;

ii. Management practices implemented during the reporting period pursuant to the plans, and the extent of their implementation; and

iii. Wood and other forest products harvested for sale during the reporting period, including the number of sites at which harvest occurred, the total acres harvested, the size class and quantity of each product harvested, and the combined market value; and

3. Each program of professional education meeting the requirements for continuing education at N.J.A.C. 7:3-3.5 that the Approved Forester participated in during the reporting period.

(d) The Approved Forester shall additionally report in each semi-annual report such other information as the Department may request for its use in satisfying planning or reporting responsibilities under State law (such as pursuant to N.J.S.A. 13:1L-35) or as established by the USDA Forest Service (such as pursuant to the USDA Forest Service's administration of the Cooperative Forestry Assistance Act of 1978, as amended, 16 U.S.C. § 2103A).

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.7 Removal from the List of Approved Foresters

(a) The Department shall remove the name of any individual from the List of Approved Foresters who:

1. Fails to timely submit to the New Jersey Forest Service a completed semi-annual report as required by N.J.A.C. 7:3-3.6;

2. Has provided false or fraudulent information to the Department, such as in:

i. His or her application for inclusion on the List of Approved Foresters; or

ii. A semi-annual report submitted pursuant to N.J.A.C. 7:3-3.6;

3. Fails to satisfy the requirement for participation in a professional education program pursuant to N.J.A.C. 7:3-3.5;

4. Fails to abide by the Society of American Foresters Code of Ethics as required at N.J.A.C. 7:3-3.4(a), observe recognized professional standards and practices as required at N.J.A.C. 7:3 .4(b), or comply with N.J.A.C. 7:3-3.4(c); or

5. Is determined by the Department to have certified a woodland data form without satisfying the requirements of N.J.A.C. 7:3-3.3(b).

(b) Prior to removing an individual from the List of Approved Foresters under (a) above, the Department shall notify the individual in writing of the intent to remove the individual from the list. The notification shall include the basis for the removal and shall inform the individual of the procedure to request an adjudicatory hearing on the removal, in accordance with N.J.A.C. 7:3-3.9. If a hearing request is not timely received by the Department, the notice of removal shall become final and the Department shall remove the individual's name from the List of Approved Foresters.

(c) An Approved Forester may at any time submit a written request to have his or her name removed from the List of Approved Foresters.

History

• Amended by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.8 Reinstatement to the List of Approved Foresters

(a) An individual whose name has been removed from the List of Approved Foresters pursuant to N.J.A.C. 7:3-3.7 may apply for reinstatement by submitting a written request to the New Jersey Forest Service in accordance with N.J.A.C. 7:3-1.4.

(b) A request for reinstatement shall contain the following information:

1. The name and address of the individual seeking reinstatement;

2. A statement that the individual is requesting reinstatement to the List of Approved Foresters;

3. A completed application for inclusion on the List of Approved Foresters prepared and submitted in accordance with N.J.A.C. 7:3-3.2(a) through (c); and

4. A statement of whether the individual's prior removal from the List of Approved Foresters was by the Department pursuant to N.J.A.C. 7:3-3.7(a) and (b), or was at the individual's request pursuant to N.J.A.C. 7:3-3.7(c).

(c) If an individual submits a request for reinstatement and the individual's name was removed from the List of Approved Foresters by the Department pursuant to N.J.A.C. 7:3-3.7(a) and (b):

1. The Department shall not approve the request for reinstatement until at least:

i. One year after the date that the name of the individual was removed from the List of Approved Foresters; and

ii. If the individual was reinstated after a first removal pursuant to N.J.A.C. 7:3-3.7(a) and (b), two years after the date that the name of the individual was removed from the List of Approved Foresters for the second time; and

2. If the Department removed the individual from the List of Approved Foresters a third time, the removal is permanent and the Department shall not reinstate the individual to the List of Approved Foresters.

(d) Following receipt of a request for reinstatement, the Department shall notify an individual in writing of approval or denial of the request. If the Department denies the request, the notice shall include the basis for the denial, and inform the individual of the procedure to request an adjudicatory hearing on the denial in accordance with N.J.A.C. 7:3-3.9.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-3.9 Adjudicatory hearing requests

(a) An individual who has received a written notice of denial of an application for inclusion on the List of Approved Foresters pursuant to N.J.A.C. 7:3-3.2(e), removal from the List of Approved Foresters pursuant to N.J.A.C. 7:3-3.7(b), or denial of reinstatement to the List of Approved Foresters pursuant to N.J.A.C. 7:3-3.8(d) may, within 21 days of receipt of the notice, request an adjudicatory hearing in accordance with this section.

(b) A request for an adjudicatory hearing shall include:

1. The name, mailing address, e-mail address (if any), and phone number of the individual submitting the request;

2. The name, mailing address, e-mail address, and phone number of the attorney (if any) representing the individual identified in (b)1 above for purposes of the adjudicatory hearing;

3. The date the individual identified in (b)1 above received written notice of the decision or proposed decision;

4. A copy of the written notice of decision being appealed;

5. A statement of the basis for the appeal;

6. An estimate of the time required for the hearing (in days and/or hours);

7. A request, if necessary, for a barrier-free hearing location for physically disabled persons; and

8. A clear indication of any willingness to negotiate a settlement with the Department prior to the Department's transmitting the case to the Office of Administrative Law.

(c) The individual requesting an adjudicatory hearing shall:

1. Submit the request in writing to:

New Jersey Department of Environmental Protection

Office of Administrative Hearings and Dispute Resolution

ATTENTION: Adjudicatory Hearing Requests

401 E. State Street

Mail Code 401-07A

PO Box 420

Trenton, New Jersey 08625-0420; and

2. Provide a copy to the New Jersey Forest Service at the address at N.J.A.C. 7:3-1.4(a).

(d) An adjudicatory hearing shall be conducted in accordance with the provisions of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and the Uniform Administrative Procedure Rules, N.J.A.C. N.J.S.A. 1:1-1 et seq.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

Subchapter 4 CERTIFIED TREE EXPERTS (Repealed)

N.J. Admin. Code § 7:3-4.1 Scope and authority (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-4.2 Application procedure (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-4.3 Fees (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-4.4 Advertising by Certified Tree Experts (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-4.5 Suspensions; revocations; violations; penalties (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-4.6 Canons of Professional Ethics and standards of conduct for Certified Tree Experts (Repealed)

History

• Repealed by 49 N.J.R. 3824(a), effective 12/18/2017

Subchapter 5 FOREST STEWARDSHIP PROGRAM

N.J. Admin. Code § 7:3-5.1 General provisions

(a) The Forest Stewardship Program is a voluntary program for an owner who is willing to manage a qualifying property in accordance with a forest stewardship plan approved by the Department pursuant to this subchapter.

(b) A forest stewardship plan shall apply to the entirety of a single qualifying property that is privately held. To qualify, a property shall:

1. Include five acres or more of land, exclusive of land on which the Department determines that the owner is precluded from engaging in forest management due to an easement or other legal constraint, that qualifies as forest land; and

2. Not be landlocked.

(c) For the purposes of this subchapter, except as set forth in (d) below, land is forest land if it is a defined and continuous area of land that lies wholly within a property, is at least 0.5 acres in size, is to be managed under the plan as forest land, and:

1. Has at least 10 percent canopy cover; or

2. Does not currently have the canopy cover in (c)1 above, but is:

i. Capable of achieving at least 10 percent canopy cover; and

ii. Is scheduled in the forest stewardship plan as approved by the Department to be afforested or reforested to such a level of canopy cover within the period for which the plan is approved.

(d) The following shall not qualify as forest land:

1. Land devoted to the production of Christmas trees;

Land on which trees are grown for sale as nursery stock; and

3. Land, such as an orchard, on which trees are grown primarily for their production of an agricultural product, such as apples or nuts.

(e) The owner of a qualifying property participates in the Forest Stewardship Program by managing the property in compliance with a forest stewardship plan. The Department shall deem an owner to be in compliance if:

1. The owner:

i. In consultation with an Approved Forester, has prepared a forest stewardship plan for the property that meets the criteria at N.J.A.C. 7:3-5.2;

ii. Has submitted the plan for review by the Department in accordance with N.J.A.C. 7:3-5.9 and has obtained the Department's approval of the plan;

iii. Is managing the property in compliance with the approved plan;

iv. Is monitoring progress toward the plan's objectives and maintaining records as required at N.J.A.C. 7:3-5.11(a), (b), and (c); and

v. If any of the circumstances listed at N.J.A.C. 7:3-5.12(a) apply, has submitted an amendment modifying the plan to incorporate appropriate revisions; and

2. The plan has not expired or been terminated, and its approval has not been revoked.

(f) An owner with an approved Federal guidelines plan or woodland management plan that has not expired, been terminated by the owner, or been revoked by the Department may convert the plan to a forest stewardship plan approved as conforming to this subchapter by preparing a plan conversion in accordance with N.J.A.C. 7:3-5.14 and submitting the plan conversion for review and approval under this subchapter as a forest stewardship plan.

(g) Compliance with a plan and the applicable requirements of this subchapter is the owner's responsibility. However, if the owner is not a single individual, an individual who meets the following criteria may, on behalf of the owner, sign the required certification and submit a plan, plan amendment, plan conversion, or notice of plan termination:

1. If the owner consists of two or more individuals, any of those individuals; and

2. If the owner consists of at least one person who is a corporation or other non-individual:

i. An employee of the non-individual or a member of its governing board; or

ii. If one or more individuals are co-owners with the non-individual owner, any of those individuals.

(h) Once approved, a forest stewardship plan is valid for a period of 10 years, unless revoked sooner by the Department, terminated by the owner, or replaced by the owner with a new plan.

(i) The 10-year period for which the plan is approved shall be specified by the Department on the title page of the plan:

1. The plan's start date shall be the date of the Department's issuance of a notice of approval of the plan or, if applicable, the day after the expiration date of the prior plan, whichever is later; and

2. The plan's end date shall be the date that is 10 years after its start date. The plan period may not be extended. The plan shall expire on its end date.

(j) A property is subject to on-site inspection by the Department when a forest stewardship plan or a plan conversion is under review and, following approval, for verification of compliance.

(k) The Department may, if it finds that the information provided in a plan, plan amendment, or plan conversion is incorrect, revoke approval of the plan by providing a written notice of revocation. The Department shall include in the notice the Department's reason or reasons for the revocation.

(l) Department approval of a plan, plan amendment, or plan conversion pursuant to this subchapter does not relieve the owner of responsibility for complying with any other applicable legal obligation, such as obtaining a permit or other approval required under State, Federal, or local law or satisfying the terms of an easement, nor does it relieve the owner of liability for failure to comply. Approval under this subchapter does not constitute authorization to carry out any of the practices set forth in the plan until and unless all other applicable legal obligations are satisfied.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.2 Plan criteria

(a) A forest stewardship plan shall contain:

1. A title page in accordance with N.J.A.C. 7:3-5.3;

2. A background and goals section in accordance with N.J.A.C. 7:3-5.4;

3. A property overview section in accordance with N.J.A.C. 7:3-5.5;

4. A forest stands section in accordance with N.J.A.C. 7:3-5.6;

5. A management schedule in accordance with N.J.A.C. 7:3-5.7; and

6. Appendices, including maps, in accordance with N.J.A.C. 7:3-5.8.

(b) Management of the forest land and its natural resources under the plan shall be based on the principle of conservation. That is, the plan shall be designed to sustain the productivity of the forest land and its natural resources in perpetuity. The plan may allow compatible human use. If the plan includes cutting and removal of trees, it shall ensure regeneration sufficient to maintain the forest and its ecosystem.

(c) The plan shall prescribe active management to sustain and enhance forest productivity and yield of ecosystem services.

(d) No plan shall call for removal of trees, such that the canopy cover of the affected area is reduced to less than 10 percent, unless the tree removal is part of a prescription that leads to forest regeneration within the plan period.

(e) The plan shall be designed to be implemented in a sustainable manner and in a manner that protects and preserves each cultural resource identified pursuant to N.J.A.C. 7:3-5.5(g).

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.3 Title page

(a) A plan's title page shall include the following:

1. A title for the plan, as follows: "Forest Stewardship Plan for ";

2. The legal name, mailing address, and phone number of the owner or owners and, if in accordance with N.J.A.C. 7:3-5.1(g) an individual is signing the certification on behalf of a corporation or other non-individual, the individual's name and relationship to the owner;

3. The name of the Approved Forester with whom the owner prepared the plan;

4. The property's street address, if available, and each county, and each municipality within the county, in which the property in whole or part is located and, for each municipality, the block and lot numbers from the municipal tax map for each lot that is part of the property;

5. The acreage of the property as a whole and of the property's forest land, accurate to the nearest hundredth of an acre;

6. Whether the owner intends to submit the plan with an application for farmland assessment; and

7. The certifications specified in (c) below.

(b) The title page shall include space for the New Jersey Forest Service to record the date the plan was received for review, the date of the notice of approval, the start and end dates of the plan period, and the ID number assigned by the New Jersey Forest Service.

(c) The title page shall include the following certifications:

1. To be signed and dated by the owner:

"I certify that I am the owner of the property or am authorized by the owner to make this certification. I have read the within forest stewardship plan and the information contained in the plan is true. To the best of my knowledge, the plan meets the requirements of the Forest Stewardship Program rules at N.J.A.C. 7:3-5 and applicable Federal and State law. The owner agrees to implement the plan, as approved or as subsequently amended"; and

2. To be signed and dated by the Approved Forester:

"I prepared the within forest stewardship plan in consultation with the owner of the property. I certify that, to the best of my knowledge, the plan meets the requirements of the Forest Stewardship Program rules at N.J.A.C. 7:3-5 and applicable Federal and State law."

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.4 Background and goals

(a) A forest stewardship plan shall begin with a background and goals section.

(b) With regard to background, the section shall:

1. Describe the location of the property, given in terms such as the distance and direction along a roadway from an intersection or other distinctive feature, and indicate where the property is to be accessed from a public roadway;

2. State whether all or part of the property is located in the Highlands Region, as designated by N.J.S.A. 13:20-7, or the Pinelands Area, as designated by N.J.S.A. 13:18A-11;

3. Provide relevant history of the property, including:

i. Information regarding the present condition of the property's forest land, the property's past ownership, change in land use over time, and past events or practices that contribute to the present condition, such as past harvesting and other forest management activities, agricultural practices, wildfire, flooding, drought, and/or insect and disease outbreaks; and

ii. For any forestry plan applicable to the property within the past 10 years, the type of plan (such as woodland management plan or forest stewardship plan approved under this subchapter), and date and reason the plan has ended or will end (such as by expiration, termination, or revocation);

If a prior forest stewardship plan applies to the property, whether it is not yet expired or has expired within the past 10 years, list for each stand the objectives in the prior plan applicable to the stand, report for each objective the monitoring data collected and recorded pursuant to N.J.A.C. 7:3-5.11(c) during the plan period, describe the trend if any shown by the data, and assess the progress toward the objective achieved under the prior plan;

5. State whether:

i. The property includes wetlands and, if so, whether any prescriptions and practices in the plan are subject to the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A-2.8; and

ii. Some or all of the property's forest land lies in a flood hazard area and, if so, whether any of the prescriptions and practices in the plan is subject to the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-7;

6. Describe any legal constraint, such as an easement, that has the potential to affect management of the property's forest land; and

7. Describe any other factors relevant to the design of the plan, such as local considerations, economic aspects, and/or aesthetic, privacy, or safety concerns.

(c) With regard to goals, the section shall:

1. Set forth the owner's long-term goals for the property and its forest land. These shall include:

i. Ensuring the sustainability of the property's forest land;

ii. Any additional long-term stewardship goal the owner has for the forest land and its natural resources; and

iii. Any other long-term goal of the owner with respect to the property. Such goal shall be compatible with each goal identified pursuant to (c)1i and ii above; and

2. Indicate whether the owner intends to manage the property's forest land in coordination with the management of one or more neighboring properties and, if so, explain the goals of and mechanisms for such management.

(d) The section shall include the owner's acknowledgement of the obligation to carry out monitoring and recordkeeping in accordance with N.J.A.C. 7:3-5.11.

(e) The plan shall indicate whether the prescriptions and practices in the plan are designed to:

1. Ensure the sustainability of the forest land; and

2. Eliminate excessive and unnecessary cutting.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.5 Property overview

(a) The owner shall ensure that the boundaries of the property are physically marked, such as by a fence, roadway, or signage, or a natural feature, such as a stream. The property overview section shall describe how the boundaries of the property are physically demarked.

(b) The section shall indicate the use being made of each portion of the property as of the date the plan is submitted for review in accordance with N.J.A.C. 7:3-5.9. If, pursuant to N.J.A.C. 7:3-5.1(c) and (d), an area qualifies as forest land, the section shall:

1. State whether the area is "current" forest land or "proposed" forest land scheduled to be afforested or reforested under the plan. If it is "proposed" forest land, the section shall also specify the current use being made of the area;

2. Give its acreage accurate to the nearest hundredth of an acre; and

3. Identify its location on the property.

(c) The section shall describe:

1. The topography of the property and any distinctive land forms or landscape features;

2. Characterize the property's soils and their erodability, and provide reference to the soils map submitted as an appendix pursuant to N.J.A.C. 7:3-5.8(b)1; and

3. The hydrological characteristics of the property, including, but not limited to:

i. Any waterbody or waterway present;

ii. Any wetland, indicating whether it is capable of growing trees, its resource value classification (exceptional, intermediate, ordinary) as assigned under the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A , and the width of its associated transition area, if any; and

iii. Any area that is a regulated area pursuant to the Flood Hazard Area Control Act rules at N.J.A.C. 7:13 , including the regulated water, any associated flood hazard area and its floodway, and the associated riparian zone, and the width of the zone; and

4. Any route to be used to access the forest land that crosses a waterbody, waterway, wetland, any transition area associated with the wetland, flood hazard area, and/or a riparian zone, and the infrastructure to be employed for such crossing.

(d) The section shall describe the ecology and biodiversity of the property, discuss the role, if any, that fire plays in the ecology of the property, and identify:

1. Any State-listed threatened or endangered species determined to be on or near the property through a search of the Natural Heritage Database performed no more than one year prior to the date the plan is submitted for review pursuant to N.J.A.C. 7:3-5.9. The owner shall request such search by:

i. Completing a Natural Heritage Data Request Form. The form may be downloaded from the Department's website, http://www.nj.gov/dep/parksandforests/natural/docs/Natural_Heritage_Data %20_Request_Form.pdf, or requested from the Department at the address at (d)1ii below; and

ii. Submitting the completed form by e-mail, mail, or fax to:

New Jersey Department of Environmental Protection

Office of Natural Lands Management

Mail Code 501-04

PO Box 420

501 East State Street

Station Plaza #5, 4th floor

Trenton, NJ 08625-0420

Fax: (609) 984-1427

E-mail: Natlands@dep.nj.gov; and

2. Any Federally listed threatened or endangered species determined to be on or within the vicinity of the property, or to have critical habitat on or within the vicinity of the property, in accordance with procedures established by the USFWS's New Jersey Field Office. An owner shall obtain information about these procedures from:

United States Fish and Wildlife Service

New Jersey Field Office

Atlantic Professional Park

4 East Jimmie Leeds Road, Unit 4

Galloway, New Jersey 08205

Phone: (609) 646-9310

www.fws.gov/northeast/njfieldoffice/endangered/consultation.html.

(e) In complying with (d)1 and 2 above, the plan shall not divulge the precise location of any Federally listed or State-listed threatened or endangered species.

(f) With respect to the property's "current" forest land identified pursuant to (b) above, the section shall:

1. Identify threats to the sustainability of the forest land or the forest ecosystem, including factors that impair forest health or impede natural succession, such as insect infestations and disease, storms, flooding, drought, invasive species, salt spray, ice, and deer; and

2. Assess the condition of the forest land with respect to carbon sequestration, taking into consideration its functioning both as a carbon source and a carbon sink.

(g) The section shall identify any cultural resources on the property that merit protection and preservation, including:

1. Any prehistoric or historic district, site, building, structure, or object listed in the New Jersey Register of Historic Places and/or the National Register of Historic Places, available at www.nj.gov/dep/hpo/1identify/nrsr_lists.htm; and

2. Any other unique feature that the owner identifies as archeologically, culturally, historically, geologically, biologically, or ecologically valuable.

(h) If present on the property or relevant to the plan's objectives, the section shall also discuss:

1. The property's natural resources with respect to their potential for providing recreational opportunities, affording fish and wildlife habitat, producing desired timber species, producing wood, fiber, or other forest product, and/or enhancing aesthetic qualities;

2. The potential for usage of forest land through agroforestry or as range land; and

3. Any conservation-based estate planning undertaken by the owner.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.6 Forest stands

(a) All of the property's forest land, identified pursuant to N.J.A.C. 7:3-5.5(b) shall be assigned to a stand. The forest stands section shall list the property's stands and, for each stand:

1. Identify the name or number by which the stand is referenced in the plan;

2. State its total acreage, accurate to the nearest hundredth of an acre; and

3. Provide forest inventory information based on a recent survey. This shall include:

i. The species composition of the stand's vegetation, with the overstory and understory described separately;

ii. The stand's forest type;

iii. The structure of the stand, including:

(1) For an even-aged stand, its age class, DBH class, and crown class; and

(2) For an uneven-aged stand, its age-class distribution, DBH-class distribution, and crown-class distribution;

iv. The stocking level of the stand, given as a percentage of full stocking;

v. The stand's volume and rate of growth;

vi. The stand's site index;

vii. If the plan directs that any prescription or practice be carried out in the stand during the plan period, a stand table and a stock table for the stand;

viii. The condition of the stand, including:

(1) The size, growth rate, and vigor of the trees;

(2) The density of the stand, expressed as basal area, and whether any mortality is evident;

(3) The status of native biodiversity within the forest or stand and the extent to which factors that suppress such biodiversity are present, such as browse by deer;

(4) The status of regeneration;

(5) Whether any invasive species impair, or threaten to impair, the stand's ecosystem and, if so, identification of the species and the extent and manner of impairment or potential impairment;

(6) The presence of biotic or abiotic damage-causing agents, such as insect infestations, disease, and/or salt spray;

(7) Evidence of damage-causing events, such as flooding, wildfire, and/or high winds; and

(8) Litter cover; and

ix. If the plan prescribes management of any resource other than trees, the current status of that resource.

(b) For each stand, the forest stands section shall:

1. Give the desired future condition of the stand, and explain how this desired condition has a clear and direct relationship to one or more of the long-term goals set forth in the plan pursuant to N.J.A.C. 7:3-5.4(c)1; and

2. Set forth one or more objectives directed toward achieving the desired future condition, specifying in each objective one or more measurable results planned to be achieved within the plan period

(c) For each objective set forth pursuant to (b)2 above, provide the method to be used for monitoring progress toward the planned result and for assessing forest productivity, including:

1. One or more parameters to be measured to determine the amount or extent of the progress toward the planned result;

2. How the parameter will be measured, including any constraints or conditions that are to be observed in taking the measurements;

3. The units to be used in recording the measurements; and

4. The baseline value of each parameter, measured in accordance with (c)1, 2, and 3 above, and the date that the measurement was taken.

(d) As established at N.J.A.C. 7:3-5.2(c), a plan shall prescribe active management. In accordance with (e) below, the plan shall list the prescriptions and practices to be carried out in each forest stand during the plan period, except that a plan may list none for a stand if progress can be made toward the objective(s) for the stand without active management, the property has multiple stands, and the plan prescribes active management for one or more other stands. In such case, the section shall state, for each stand in which there will be no active management, that no prescription or practice will be carried out in that stand during the plan period and provide explanation.

(e) For each stand in which active management will be carried out under the plan, the section shall, for each objective set forth for the stand pursuant to (b)2 above, list the prescriptions and practices to be carried out during the plan period and indicate for each:

1. The rationale for the prescription or practice;

2. The extent to which it will be carried out and the methods anticipated to be used;

3. Whether it will impact, or have the potential to impact, a wetland, a transition area associated with a wetland, a flood hazard area, and/or a riparian zone;

4. Whether it could adversely impact any Federally listed threatened or endangered species identified pursuant to N.J.A.C. 7:3-5.5(d)2 or result in destruction or adverse modification of its critical habitat and, if so, identify each measure that will be taken to avoid such adverse impact to the species and/or destruction or adverse modification of its critical habitat;

5. Whether it could adversely impact any additional State-listed threatened or endangered species identified pursuant to N.J.A.C. 7:3-5.5(d)1, or its habitat and, if so, identify each measure that will be taken to avoid such adverse impact to the species and/or its habitat; and

6. Whether it could adversely impact any cultural resource identified pursuant to N.J.A.C. 7:3-5.5(g) and, if so, identify each measure that will be taken to protect and preserve the cultural resource.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.7 Management schedule

The management schedule shall present in table format, in chronological order (to the extent feasible), the practices to be carried out during the plan period. The table shall indicate the stand or stands in, or for which, the practice is to be carried out, the planned extent of the practice, and the year or range of years in which the practice will be carried out.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.8 Appendices

(a) The appendices to a plan shall include:

1. Maps relevant to the plan, including, at a minimum, those specified in (b) below;

2. A copy of the Natural Heritage Data search report relied upon pursuant to N.J.A.C. 7:3-5.5(d)1, including documentation of its date of issuance; and

3. A copy of the documentation relied upon to identify the Federally listed threatened or endangered species determined to be on or within the vicinity of the property, or to have critical habitat on or within the vicinity of the property, as required at N.J.A.C. 7:3-5.5(d)2, and the date the documentation was issued.

(b) The appendices shall contain the following maps:

1. A soils map showing the soil group classifications that apply to the property, based on information obtained from the National Resource Conservation Service's Web Soil Survey at http://websoilsurvey.sc.egov.usda.gov no more than one year prior to the date the plan is submitted for review;

2. A locator map that identifies the location of the property in relation to the local area and displays identifiable features, such as neighboring roads and road intersections, waterways, and structures, that can be helpful in locating the property. The locator map may be provided as a box inset on a map of the property; and

3. A map of the property that meets the following requirements:

i. The map's scale shall not be smaller than 1 inch:1,500 feet or larger than 1 inch:200 feet;

ii. The map shall be displayed on a background of color aerial photography unless two or more maps of the property will be submitted. In such case, only one, showing the entirety of the property, needs to be displayed on aerial photography;

iii. The map shall display the information in (b)3iii(1) through (5) below. If the amount of this information is too much to be displayed clearly on a single map, two or more property maps may be included in a plan, each of which presents a portion of the property and/or a subset of the required elements:

(1) The physical features of the property, including natural features, such as waterbodies and waterways and built features such as roads, railroads, and structures;

(2) Any wetland, any transition area associated with the wetland, any flood hazard area, and any riparian zone on the property;

(3) Any area, within the property's forest land, that is subject to an easement or other legal restriction, such as a right of way held by a public utility, relevant to management of the forest land;

(4) The uses being made of the land at the time the plan is prepared and submitted for review; and

(5) Any existing or proposed access route, constructed or maintained for forest management, that crosses a waterbody, waterway, wetland, transition area associated with the wetland, flood hazard area, and/or riparian zone.

(c) Each map shall:

1. Have a label that provides:

i. A brief title indicating the type of information being displayed;

ii. The owner's name;

iii. The street address of the property, if available; the block and lot number of the property's primary lot; and the county and municipality in which that lot is located;

iv. The date the map was prepared;

v. An arrow designating the north direction; and

vi. The source from which the map is derived (tax map, land survey, deed, aerial photography);

2. Include a legend that explains the meaning of each of the symbols appearing on the map and gives the scale of the map;

3. Be clear and legible, and at a scale appropriate to distinguish the relevant information;

4. Delineate the boundary of the property, taken from the most recent tax map of the taxing district in which the property is located or other such reliable source; and

5. Delineate each stand and label each stand with the name or number identified for the stand pursuant to N.J.A.C. 7:3-5.6(a)1.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.9 Submission of a plan, plan amendment, or plan conversion

(a) No owner shall submit, or authorize the submission of, a forest stewardship plan, plan amendment, or plan conversion for review unless it meets all the applicable requirements in this subchapter.

(b) Unless the document is being submitted electronically pursuant to N.J.A.C. 7:3-1.4(b), an owner shall submit a forest stewardship plan, plan amendment, or plan conversion:

1. On 8.5 inch by 11 inch paper, except that maps and other graphics may be larger to provide appropriate scale; and

2. To the regional office of the New Jersey Forest Service that serves the county where all or the greatest portion of the property's forest land are located. Contact information for regional offices of the New Jersey Forest Service is available on the Department's website, www.state.nj.us/dep/parksandforests/forest/njfs_regional_offices.html.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.10 Department review

(a) The Department may inspect a property to assess whether a forest stewardship plan, plan amendment, or plan conversion submitted to it meets the requirements of this subchapter.

(b) The Department shall not approve a forest stewardship plan, plan amendment, or a plan conversion, unless the plan, plan amendment, or plan conversion conforms with the requirements of this subchapter.

(c) The Department shall notify the owner and the Approved Forester identified on the title page of the plan whether the plan, plan amendment, or plan conversion is approved or not approved. Notification shall be in writing.

(d) If the Department disapproves the plan, plan amendment, or plan conversion, the written notification in (c) above shall include the Department's reason or reasons therefor.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.11 Monitoring and recordkeeping

(a) The owner shall maintain records that document:

1. The implementation of prescriptions and practices; and

2. Each inspection for verification of compliance with the plan that is carried out by the Department.

(b) The owner shall monitor the progress made toward each objective in the plan as follows:

1. For each objective, measurements shall be taken in accordance with the applicable monitoring method in the approved plan;

2. If the plan provides for any prescription or practice to be carried out during the plan period in order to make progress toward the objective, the measurements shall be taken in the third, sixth, and ninth years of the plan period; and

3. If the plan does not provide for any prescription or practice to be carried out during the plan period in order to make progress toward the objective, the measurements shall be taken in the ninth year of the plan period.

(c) The owner shall make and maintain a monitoring record, organized by stand, and within each stand by objective. For each objective, the owner shall sequentially record the value obtained when each measurement is taken pursuant to (b) above, together with the date the measurement is taken.

(d) At the time of an on-site inspection carried out under N.J.A.C. 7:3-5.1(j), the owner shall make all records maintained pursuant to (a) and (c) above available for on-site review by the Department.

(e) The owner shall, within 15 days of receipt of a written request, provide a copy of the monitoring record required pursuant to (c) above to the Department.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.12 Plan amendments

(a) The owner shall submit an amendment to the plan if any of the following circumstances occurs during a plan period:

1. The owner decides to modify the long-term goals for the property and its forest land;

2. The owner determines that any of the plan's objectives, prescriptions, or practices is no longer viable;

3. An on-site inspection carried out by the Department indicates:

i. Information in the plan is not or is no longer true; or

ii. An objective, prescription, or practice in the approved plan is no longer appropriate or viable for the property;

4. A change in land use occurs, such that:

i. The affected area of the property will no longer be used as described in the approved plan pursuant to N.J.A.C. 7:3-5.5(b); and

ii. The change will:

(1) Impact any of the property's forest land;

(2) Interfere with the conduct of any prescription or practice in the plan;

(3) Convert forest land to a non-forest use; or

(4) Convert any portion of the property to a use that is inconsistent with the sustainability of any of the property's forest land; or

5. The owner acquires new adjacent land that includes forest land, or sells, or otherwise conveys to another person, a portion of the property that includes forest land.

(b) In addition, at any time during the plan period, an owner may choose to submit an amendment to a plan.

(c) An owner shall prepare a plan amendment in consultation with an Approved Forester and submit it for review in accordance with N.J.A.C. 7:3-5.9. (d) A plan amendment shall:

1. Request the Department's approval of one or more changes to the approved forest stewardship plan and explain the reason for each change;

Include an amended title page that meets the requirements at N.J.A.C. 7:3-5.3(a)1 through 6 and additionally includes:

i. The start date and end date of the plan period, as specified by the Department when the plan was initially approved;

ii. The ID number assigned by the New Jersey Forest Service;

iii. The date on which each prior amendment, if any, was approved;

iv. Space for the New Jersey Forest Service to record the date the amendment was received for review and the date of approval of the amendment; and

v. Certifications in accordance with N.J.A.C. 7:3-5.3(c) signed and dated by the owner and the Approved Forester;

Indicate whether one or more of the owner's long-term goals for the property and its forest land have changed and, if so, explain how they have changed; and

4. Provide all information required in a plan pursuant to N.J.A.C. 7:3-5.6 that is relevant to each change and, if the management schedule is consequently altered, provide a revised management schedule in accordance with N.J.A.C. 7:3-5.7.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-5.13 Change in ownership

(a) If ownership changes as to all or a portion of a property for which there is an approved forest stewardship plan in effect, the approval shall be deemed revoked as to all of the property under the plan as of the date of the transfer, except as set forth in (b) below.

(b) If ownership of all or a portion of a property covered by a forest stewardship plan changes, the plan shall continue to be considered to be in effect and its approval not revoked for any portion of the property covered by the plan, whether retained or transferred, provided:

1. The portion of the property, whether retained or transferred, meets the requirements of N.J.A.C. 7:3-5.1(b) for a qualifying property either in itself or, in the case of a transferred portion, together with one or more other contiguous lots held by the new owner;

2. Until the plan is amended or a new plan is approved, the owner manages the portion of the property in accordance with the applicable provisions of the plan and the requirements of N.J.A.C. 7:3-5.11; and

3. Within one year of the date of the transfer, the owner of the portion submits for review and approval in accordance with N.J.A.C. 7:3-5.9:

i. A plan amendment that reflects the transfer of ownership and the goals and objectives of the new owner; or

ii. A new forest stewardship plan.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

Subchapter 6 FOREST STEWARDSHIP ADVISORY COMMITTEE

N.J. Admin. Code § 7:3-6.1 Committee membership

(a) The State Forester shall serve on the Committee as Committee Chair.

(b) The following shall serve ex officio:

1. Director of the USDA Forest Service, Northeastern Area;

2. The State Conservationist of New Jersey within USDA's Natural Resources Conservation Service (NRCS);

3. The Executive Director of the New Jersey State Office of USDA's Farm Service Agency;

4. The Director of the Cooperative Extension Service of the Rutgers New Jersey Agricultural Experiment Station (NJAES);

5. The Director of the Division of Taxation in New Jersey's Department of the Treasury;

6. The Director of the Division of Agricultural and Natural Resources in the New Jersey Department of Agriculture;

7. The President of the New Jersey Forestry Association;

8. The Chair of the New Jersey Division of the Society of American Foresters;

9. The President of the Association of Municipal Assessors of New Jersey;

10. The Supervisor of the New Jersey Field Office, Northeast Region Ecological Services, USFWS;

11. The Chair of the New Jersey Tree Farm Committee; and

12. The Director of the New Jersey Division of Fish and Wildlife.

(c) In this subchapter, reference to an ex officio member shall mean either the individual listed in (b)1 through 12 above or that individual's designee, as applicable. A designee shall be an employee or a member of the governing board of the agency or organization.

(d) Additionally, the Commissioner shall appoint six members to the Committee, each of whom shall serve as a representative of the respective interest area specified as follows:

1. An individual on the List of Approved Foresters maintained by the Department pursuant to N.J.A.C. 7:3-3, as a representative of Approved Foresters;

2. An employee or member of the governing board of a New Jersey lands trust that is actively engaged in natural resource land management, as a representative of such land trusts;

3. An owner or operator of a private forest products business located in New Jersey, as a representative of such businesses;

4. A New Jersey property owner who is eligible under the National Forest Stewardship Guidelines to qualify to enroll the property in the Federal forest stewardship program administered by the USDA Forest Service under the Cooperative Forestry Assistance Act of 1978, as amended, 16 U.S.C. § 2103A, as a representative of private forest landowners;

5. A representative of a New Jersey nonprofit conservation organization, other than a land trust, that aids and advises private property owners and/or local government units in the preservation of forest land, as a representative of such conservation organization; and

6. A representative of a nonprofit environmental advocacy organization that is not a land trust or conservation organization, but is concerned with forests and forestry in New Jersey, as a representative of such nonprofits.

(e) In addition to the six members set forth in (d) above, the Commissioner may appoint up to three additional members to the Committee to represent other relevant interests as the Commissioner deems appropriate.

(f) No individual shall serve on the Committee as the representative of more than one category in (b) and (d) above, even if he or she meets the qualifications for more than one category.

(g) No employee of the Department shall serve as an appointed member of the Committee pursuant to (d) or (e) above while employed by the Department.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-6.2 Reserved

History

• Reserved by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-6.3 Appointed members; term and compensation

(a) Appointed members shall serve at the pleasure of the Commissioner for a term of three calendar years.

(b) Notwithstanding (a) above, of the six members of the Committee to be initially appointed by the Commissioner in accordance with N.J.A.C. 7:3 -6.1(d), two shall be appointed for a term of one calendar year (or part thereof), two for a term of two calendar years (or part thereof), two for a term of three years (or part thereof). Thereafter, each appointment under N.J.A.C. 7:3 -6.1(d) shall be made for a term of three calendar years, except as set forth in (d) below.

(c) An appointed member shall serve for the term for which he or she is appointed, or until the member resigns or his or her term is terminated by the Commissioner.

(d) Each appointed member serving at the time of the expiration of his or her term, may continue to serve until he or she resigns or his or her successor is appointed, unless the Commissioner directs otherwise.

(e) Any vacancy occurring in the appointed membership of the Committee, by expiration of term or otherwise, shall be filled by the Commissioner in the same manner as the original appointment. A new appointee shall serve for the unexpired portion of the term.

(f) Appointed members shall serve without compensation.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-6.4 Functions and authority of the Committee

(a) The Committee is authorized to perform any function assigned to it under Federal or State law, including, but not limited to:

1. Advising the Department in accordance with N.J.S.A. 13:1L-35 and 36, and the USDA Forest Service's National Forest Stewardship Guidelines; and

2. Serving as New Jersey's Forest Stewardship Coordinating Committee in accordance with the Food, Agriculture, Conservation, and Trade Act of 1990, 16 U.S.C. § 2103(c), and the Cooperative Forestry Assistance Act, 16 U.S.C. § 2113(b).

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-6.5 Organization and conduct of the Committee

(a) The chairperson shall, in accordance with N.J.A.C. 7:3-6.6, schedule and preside over Committee meetings and coordinate Committee activities. The Committee may take action by the affirmative vote of a majority of the members present at a meeting, provided that a quorum of 50 percent or more of the members of the Committee is in attendance.

(b) All Committee members shall be voting members, except that the chairperson shall vote only as necessary to break a tie.

(c) As soon as practical after the initial appointment of the Committee's members, the chairperson shall call a meeting of the Committee.

(d) The Committee shall elect a Vice-Chair from among its members. The Vice-Chair shall serve as chairperson in the event of the absence or recusal of the Committee Chair. The member elected Vice-Chair shall serve in that position for one year, unless he or she resigns the position or is no longer a member of the Committee. The Committee shall elect a Vice-Chair from among the Committee's membership whenever there is a vacancy in the position, but no less frequently than annually.

(e) The Committee may adopt bylaws for the regulation of its affairs, provided these are consistent with the provisions of this subchapter and are approved by the State Forester. Bylaws may include, but need not be limited to, how Committee meetings shall be conducted and the establishment of additional officer positions, temporary or ongoing.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

N.J. Admin. Code § 7:3-6.6 Authority and responsibilities of the Chair

(a) Annually, after consulting with members at a regularly scheduled meeting, the Chair shall establish a schedule of Committee meetings, which shall provide for no fewer than three meetings per calendar year, and which shall fix the time and place of the meetings.

(b) The Chair shall prepare and distribute an agenda prior to each meeting and shall preside over the meeting.

(c) The Chair may call special meetings of the Committee on not less than 10 days' notice to each member, when the Chair determines such a meeting is necessary or advisable.

(d) Subject to Committee vote, the Chair may:

1. Establish a sub-committee for an assigned purpose, name a member to head the sub-committee, assign responsibilities to the sub-committee, and specify deadlines and obligations of the sub-committee to report to the Committee as a whole; and

2. Dissolve a sub-committee when its work is complete or it is otherwise no longer needed.

(e) Subject to Committee vote, the Chair may:

Establish one or more temporary officer positions, specify the duties of the position, and assign a member to the position; and

2. Eliminate any temporary officer position at the end of the term of the incumbent on the Committee or whenever the Chair determines that the position is no longer needed.

(f) The Chair shall sign, on behalf of the Committee, reports, letters, and other documents approved by the Committee.

(g) The Chair shall track the participation and terms of Committee members and may request that the Commissioner:

1. Dismiss, and thereafter replace, an appointed member who does not attend three or more meetings in a calendar year, or three consecutive meetings;

2. Replace a member who resigns or who is dismissed by the Commissioner; and

3. Reappoint or replace a member whose term expires.

(h) The Chair shall ensure that the following are made and maintained in accordance with the applicable requirements for retention and disposition of public records at N.J.A.C. 15:3 :

1. Records of members' attendance at Committee meetings;

2. Minutes of all Committee meetings;

3. Reports and other such products of the Committee conveying its advice and/or recommendations pursuant to N.J.A.C. 7:3-6.4, together with any and all supporting documentation; and

4. Committee correspondence.

History

• Adopted by 49 N.J.R. 3824(a), effective 12/18/2017

Chapter 3A BOARD OF TREE EXPERTS

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:3A-1.1 Scope and authority

(a) Unless otherwise provided by statute, this chapter shall constitute the rules of the Tree Expert and Tree Care Operator Licensing Act, N.J.S.A. 45:15C-11 et seq. (the Act) and shall govern the licensing of tree experts and tree care operators and the registration of businesses engaging in tree care services. The rules are promulgated pursuant to the Act.

(b) The provisions of this chapter do not apply to:

1. Any public utility or any employee of a public utility while engaged in the actual performance of his or her duties as an employee;

2. Any employer under contract with a public utility who is engaged in tree trimming or any other utility vegetation management practice for purpose of line clearance, or any employee of the employer while engaged in the actual performance of duties in regard to tree trimming or other utility vegetation management practice or for the installation of underground facilities or associated construction;

3. Any forestry activities that are conducted under the forest management and stewardship programs approved by the State Forester, provided that tree climbing is not performed, nor are aerial lifts, cranes, or rope and rigging operations;

4. Landscape construction activities, including those performed by, or under the direction of, a landscape architect, or ground based landscape maintenance activities such as pruning, fertilization, insect and disease control, planting, transplanting, and all other forms of ground based landscape maintenance, in compliance with the sections of the American National Standards Institute practice standards set forth by the Board by rule, with applicable safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration, and with any pesticide regulations promulgated by the Department of Environmental Protection. For the purposes of this paragraph, ground based landscape maintenance means operations that do not involve climbing, the use of aerial lifts, cranes, rope, and rigging operations, or the removal of trees over six inches diameter at breast height;

5. Any person or employer that does not offer tree care services for hire;

6. Any trees being removed pursuant to an approved site plan or subdivision approval, provided that the tree removal activities are performed in compliance with the sections of the American National Standards Institute practice standards set forth by the Board by rule, with applicable safety standards and regulations promulgated by the Federal Occupational Safety and Health Administration, and with applicable safety standards of the American National Standards Institute as designated by the Board by rule;

7. Any employee of the State or any of its political subdivisions while engaged in the actual performance of his or her duties as an employee; and

8. Any individual engaging only in the application of pesticides pursuant to a valid pesticide applicator license recognized in this State, and who does not perform any other tree expert services.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-1.2 Purpose

The purpose of this chapter is to govern the Board's licensing of individuals as Licensed Tree Experts and Licensed Tree Care Operators and registration of businesses offering tree care services for hire in the State of New Jersey, and to regulate the safety and practice standards of individuals and businesses offering tree care services for hire within the State of New Jersey.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

"Act" means the Tree Expert and Tree Care Operator Licensing Act, N.J.S.A. 45:15C-11 et seq.

"Advertising" or "advertisement" means the description or presentation of a product or service in some medium or communication to induce the public to support, purchase, or enter into an agreement to utilize tree care services, including, but not limited to, telephone directory listings, letterhead, business cards, pamphlets, flyers, lettering on vehicles, television and radio advertisements, e-mail and internet websites, newspapers, magazines, billboards, signs, telephone for the purpose of solicitation, and any other written, oral, verbal, visual, or other media.

"ANSI" means the American National Standards Institute.

"Applicant" means an individual who has submitted an application to take the examination for licensure.

"Arboriculture" means the art, science, technology, and business of utility, commercial, and municipal tree care.

"Board" or "Board of Tree Experts" means the Board established by the Department pursuant to N.J.S.A. 45:15C-13.

"Branch office" means any location of a business, other than its principal office, that holds its own mailing address and from which the business offers tree care services for hire in the State of New Jersey, including the location of any subsidiary company that is under the same ownership as the principal office.

"Business" means any corporation, company, partnership, firm, sole practitioner or association that either wholly, or in part, holds itself out for hire to perform tree care services in the State of New Jersey.

"Candidate" means an individual who has submitted an application to take the examination for licensure, which has been approved by the Board.

"Commissioner" means the Commissioner of the Department.

"Contested case" means an adversary proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits, or other legal relations of specific parties are required by Constitutional right or by statute to be determined by the Board by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for a hearing in the Office of Administrative Law pursuant to N.J.S.A. 52:14B-2. The contested case hearing must be designed to result in an adjudication concerning the rights, duties, obligations, privileges, benefits, or other legal relations of specific parties over which there exist disputed questions of fact, law, or disposition relating to past, current, or proposed activities or interests. Contested cases are not informational nor intended to provide a forum for the expression of public sentiment on proposed agency action or broad policy issues affecting entire industries or large, undefined classes of people.

"Continuing education" means professional development activities whose purpose is academic and professional instruction to advance a tree expert or tree care operator's professional knowledge or skill.

"Continuing education credit" means a unit that indicates a quantity of continuing education undertaken by a licensee. One continuing education credit shall be equivalent to one hour of instruction.

"Department" means the Department of Environmental Protection.

"Duly authorized representative" means, with respect to the Board of Tree Experts, an individual or company retained by the Board to perform administrative, investigative, or testing functions.

"Employee" means an individual who works full-time or part-time in the service of a person or business entity providing tree care services in New Jersey under an express or implied contract of hire for a specific wage or salary and under which the employer has the right to control the details of work performance.

"Employer" means an individual or business engaged in providing tree care services for hire in the State of New Jersey, which employs the services of others and pays their wages or salaries.

"Examination" or "licensure examination" means an examination to evaluate the knowledge and competence of a candidate to perform as a licensed tree expert or licensed tree care operator.

"Good moral character" means the possession of honesty and truthfulness and a commitment to the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.2(a).

"Good standing with the Board" means that a licensed individual or registered business is current with all required fees and not currently the subject of any disciplinary action by the Board, meaning a currently suspended or revoked license or business registration, and does not have any outstanding penalty payments.

"Ground-based landscape maintenance" means operations that do not involve climbing, the use of aerial lifts, cranes, rope, and rigging operations, or the removal of trees over six inches diameter at breast height.

"License" means a document issued to an individual by the Board of Tree Experts indicating that the Board has determined that the individual is licensed and qualified to perform or supervise the provision, as applicable, of LTE or LTCO services for hire in New Jersey.

"Licensed tree care operator" or "LTCO" means an individual licensed by the Board to provide or supervise the provision of tree care operator services for hire in New Jersey.

"Licensed tree expert" or "LTE" means an individual licensed by the Board to provide or supervise the provision of tree expert services for hire in New Jersey.

"Licensee" means an individual who has been licensed by the Board as a licensed tree expert or licensed tree care operator.

"Model Tree Safety Training Checklist" means a document filed annually with the Board identifying the type of safety training the business provides for its employees.

"NJTC" means a New Jersey tree company.

"Principal office" means the primary location from which a business offering tree care services for hire in the State of New Jersey operates.

"Quarantine" means a restraint upon the activities of persons or the transport of goods designed to prevent the spread of plant disease or pests.

"Registered business" means, for the purpose of this chapter, any business that provides tree care services for hire within the State of New Jersey and is registered with the Board pursuant to this chapter.

"Registration" means a document issued by the Board pursuant to N.J.S.A. 45:15C-11 et seq. which must be obtained by a business as a condition precedent to the business performing tree care services for hire in the State of New Jersey.

"Revocation" means the cancellation or annulment by the Board of an individual's license or a business's registration.

"Suspension" means a temporary termination by the Board of an individual's license or business registration.

"Tree care operator services" means and includes tree pruning, repairing, brush cutting or removal, tree removal, and stump grinding or removal.

"Tree care services" means tree care operator services and tree expert services as established by N.J.S.A. 45:15C-11 et seq.

"Tree expert services" means and includes tree pruning, repairing, brush cutting or removal, tree removal, stump grinding or removal, tree establishment, fertilization, cabling and bracing, lightning protection, consulting, diagnosis, and treatment of tree problems or diseases, tree management during site planning and development, tree assessment and risk management, and application of pesticides or any other form of tree maintenance.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 2 BUSINESS REGISTRATION

N.J. Admin. Code § 7:3A-2.1 Business registration required

(a) Every business engaged in providing tree care services for hire in New Jersey which does not fall under the exemptions set forth at N.J.A.C. 7:3A-1.1(b) shall register biennially with the Board as a condition of doing business in New Jersey. This shall include a business that provides tree care services in New Jersey, even though its principal office and/or some or all of its branch offices are located out-of-State.

(b) Only one registration per business is required; if a business includes branch offices, those branch offices need not separately register with the Board.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.2 General duty to the public

(a) Every registered business engaged in providing tree care services for hire in New Jersey shall ensure that all tree expert services or tree care operator services it performs are done in accordance with this chapter and the canons of professional ethics and standards of conduct at N.J.A.C. 7:3A-8.3(a).

(b) Every registered business engaged in providing tree care services for hire in New Jersey shall assign at least one licensee, who may be the employer or an employee engaged in the performance of or supervision of employees who provide the tree care services, to any office location from which tree care services are provided in New Jersey.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.3 At least one licensed employee required

(a) Each registered business's principal office and any branch office providing tree care services for hire in New Jersey shall have at least one licensee as an employee.

(b) If the registered business engages in tree expert services, the licensee must be a licensed tree expert. If the business only engages in tree care operator services, the licensee may be a licensed tree expert or a licensed tree care operator.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.4 Business registration

(a) No business shall advertise, enter into, or engage in the provision of tree care services for hire in New Jersey unless the business has first registered with the Board, and until such business has hired at least one licensee as an employee at its principal office and at any branch office(s) providing tree care services in New Jersey. A single licensee cannot be assigned to more than one business location.

(b) Every business engaged in providing tree care services for hire in New Jersey shall submit a completed initial business registration form and the required documentation as set forth in N.J.A.C. 7:3A-2.5 by June 16, 2017.

(c) Every business engaged in providing tree care services for hire in New Jersey shall have until April 12, 2018, or until the Board has administered and certified the results of the licensure examination four times, whichever is later, to comply with the requirement to have at least one licensee as an employee at each principal and branch office providing tree care services in New Jersey as set forth at N.J.A.C. 7:3A-2.2.

(d) Except for an initial business registration as set forth in N.J.A.C. 7:3A-2.5(b), a business registration shall be valid for a period of two years from the date of its issuance.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.5 Initial business registration documentation and procedures

(a) Businesses shall apply for initial registration on forms that are available at the Board's offices and on the Board's website at www.njtreeexperts.org. In addition to a completed initial registration application form, the application shall include the following:

1. Proof that the business carries at least the minimum required liability insurance, as set forth at N.J.A.C. 7:3A-2.11(a);

2. Proof that the business satisfies the applicable worker's compensation insurance obligation, as set forth at N.J.A.C. 7:3A-2.11(b);

3. The business biennial registration fee set forth at N.J.A.C. 7:3A-6.1(a); and

4. Signed certification stating that the business acknowledges that it has the responsibility to ensure that at least one employee assigned to the business's principal office and to each branch office is a licensed tree expert or licensed tree care operator. The certification shall be provided on a certification form that is available at the Board's office and on the Board's website at www.njtreeexperts.org. The certification form shall establish that the business is obligated to fulfill this employment requirement by the date that is the later of the following:

i. April 12, 2018;

ii. The date upon which the Board completes the administration and certified the results of the licensure examination four times; or

iii. The date that is 60 days after the business submits its initial registration application.

(b) An initial business registration shall be valid until the end of the calendar year following its issuance.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.6 Board review of business registration applications

(a) The Board shall review each initial business registration application submitted and determine whether the business has provided all the items required at N.J.A.C. 7:3A-2.5. If the Board determines that the business has met the requirements, it will issue a registration certificate to the business.

(b) If the Board determines that the business does not meet the requirements, the Board shall deny the application and notify the business of its denial in writing. Denial of its application shall not prevent a business from remedying the application's deficiencies and resubmitting the application.

(c) If the Board determines that the business meets the requirements, the Board shall assign the business an NJTC number and issue an initial registration certificate to the business that specifies the business's assigned NJTC number.

(d) A business shall conspicuously display the registration certificate for public view in its principal office. If the business has one or more branch offices providing tree care services in New Jersey, the business shall conspicuously display a duplicate registration certificate, issued by the Board, at each branch office.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.7 Business registration biennial renewal

(a) Prior to the expiration of the initial registration period and to each registration period thereafter, to continue providing tree care services for hire in New Jersey, the registered business shall apply for renewal of its registration.

(b) A business shall apply for renewal of its registration on a business registration biennial renewal application form which is available at the Board's office and on the Board's website at www.njtreeexperts.org. In addition to a completed business registration biennial renewal application form, the application shall include the following:

1. Proof that the business continues to carry at least the minimum required liability insurance as set forth at N.J.A.C. 7:3A-2.11(a);

2. Proof that the business continues to satisfy the applicable worker's compensation insurance obligation, as set forth at N.J.A.C. 7:3A-2.11(b);

3. The business biennial registration fee set forth at N.J.A.C. 7:3A-6.1(a); and

4. Signed certification stating that at least one employee assigned to the business's principal office and to each branch office is a licensed tree expert or licensed tree care operator in good standing with the Board. The certification shall be provided on a certification form that is available at the Board's office and on the Board's website at www.njtreeexperts.org.

(c) The business shall submit the business registration biennial renewal application to the Board's office prior to the expiration of the current registration period.

(d) If a business does not apply for renewal of its registration prior to the expiration of the current registration period, the business may renew the license within 30 days of its prior registration's expiration date by submitting a completed business registration biennial registration application form along with both the business biennial registration fee and the business registration late fee set forth in N.J.A.C. 7:3A-6.1(a). During this 30-day period, the business's prior registration shall remain valid, and the business shall not be deemed in violation of N.J.A.C. 7:3A-2.4(a).

(e) If the Board does not receive a completed business registration biennial renewal application form together with payment of the business biennial registration fee and late fee within 30 days after the expiration of the current registration period, the business's registration is automatically suspended. Any business engaged in providing tree care services when its business registration is suspended is in violation of N.J.A.C. 7:3A-2.4(a) and is subject to civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(f) The Board is not responsible for providing notification to any business that its registration is about to expire.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.8 Change in status of registered business

(a) A registered business shall notify the Board in writing, within 30 days of the change, of any change to any information that is required to be provided on a registration form or a change of status or structure of the business. This shall include, but is not limited to:

1. The business altering or changing its name;

2. The business opening or closing a principal office or branch office; or

3. The business creating a subsidiary company that provides tree care services for hire in the State of New Jersey.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.9 Licensees employed by registered businesses

(a) All licensees shall abide by industry standards for arboriculture and safety as set forth at N.J.A.C. 7:3A-8.1 when performing tree care services and/or when supervising or training other employees in the performance of tree care services.

(b) All licensees employed by a registered business shall be responsible for assisting the principal or branch office to which he or she is assigned in complying with the current accepted standards of practice and safety, as well as the canons of professional ethics and standards of conduct.

(c) The Board shall not hold a licensee responsible for tree care services that are carried out by the business at which the licensee is employed that have not been performed in accordance with industry standards for arboriculture and safety if:

1. The licensee did not perform the work in question and is not the assigned supervisor of the employee who performed the work in question;

2. The licensee is not personally able to inspect or oversee work due to health issues, vacations or any other reasonable cause that prevents him or her from being at work; and

3. The licensee's supervisor or other person of higher rank within the business has superseded the direction or instructions given by the licensee and thereby caused the non-conformance with standards.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.10 Change of licensees employed by registered businesses

(a) A registered business shall notify the Board in writing if any of its licensees leave the employment of the business. Such notice shall be provided to the Board within three days of the last day the licensee is employed by the business.

(b) A business that has only one licensee assigned to its principal office or a branch office shall have 60 days from the last day the licensee was employed at or assigned to the office to assign another licensee and notify the Board in writing of the identity of the new licensee. During this 60-day transition period, the business registration shall remain valid and the business shall not be deemed in violation of N.J.A.C. 7:3A-2.4(a).

(c) Any business that fails to notify the Board of a change in employment of a licensee pursuant to (a) above and/or fails to hire or assign another licensee to an office and notify the Board within the 60-day transition period pursuant to (b) above shall be in violation of this chapter and is subject to suspension or revocation of its business registration and the assessment of civil administrative penalties pursuant to N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.11 Insurance; general liability, worker's compensation

(a) A business engaged in providing tree care services for hire in New Jersey is required either to carry a minimum of $ 1,000,000 of general liability insurance or submit to the Board a letter of credit in the amount of $ 1,000,000 issued by a bank or lending institution licensed to do business in the State of New Jersey.

(b) A business engaged in providing tree care services for hire in New Jersey is required to either secure and maintain worker's compensation insurance coverage for its employees or be approved for self-insurance by the New Jersey Compensation Rating and Inspection Bureau, in conformance with the provisions of N.J.S.A. 34:15-1 et seq. Businesses offering tree care services shall have worker's compensation insurance based upon the applicable New Jersey Compensation Rating and Inspection Bureau code.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.12 Recordkeeping

(a) A registered business shall keep on file for at least four years, documentation of its liability insurance coverage and worker's compensation insurance coverage, if applicable.

(b) A registered business shall keep on file for at least four years, a copy of the letter of credit if a letter of credit is substituted for the liability insurance requirement as set forth at N.J.A.C. 7:3A-2.11(a).

(c) A registered business shall keep on file documentation of employee safety training for each employee for at least as long as the individual is an employee of the business.

(d) All records and information required to be kept pursuant to this section shall be provided to the Board within 10 days of the Board's written request.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.13 Registered business safety policies

(a) A registered business shall develop, establish, and/or adopt from other industry sources a written comprehensive safety policy within 90 days of initially registering with the Board. The policy shall be given to each new employee and be available to every employee of the registered business, and the registered business must comply with the policy. Guidelines for developing a comprehensive safety policy are available from the Board and are posted on the Board's website at www.njtreeexperts.org.

(b) The Board may request from a business a copy of its comprehensive safety policy for review.

(c) The registration of a business that fails to develop and establish a written comprehensive safety policy within the first three months of registering the business with the Board may be suspended until such time as the business establishes its comprehensive safety policy.

(d) The Board may invalidate a business's comprehensive safety policy if it determines that it fails, in its scope or any of its standards, to meet the industry standards for arboriculture and safety set forth at N.J.A.C. 7:3A-8.1. The business shall have three months to revise a comprehensive safety policy invalidated by the Board.

(e) Following invalidation of a business's comprehensive safety policy under (d) above, the business's registration may be suspended if it fails to establish a revised comprehensive safety policy within three months or if the Board invalidates the revised policy because it fails, in its scope or any of its standards, to meet the industry standards for arboriculture and safety set forth at N.J.A.C. 7:3A-8.1. In such case, the business's registration shall continue to be suspended until the business again revises the policy, submits the revised policy to the Board for review, and the Board finds that the revised policy meets in full the industry standards for arboriculture and safety set forth at N.J.A.C. 7:3A-8.1.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.14 Mandatory employee safety training

(a) A registered business shall provide instruction and training for its employees per the requirements of ANSI Z133-2012 Safety Requirements for Arboricultural Operations, incorporated herein by reference, as amended and supplemented, which includes the applicable OSHA, Federal Motor Carrier Safety Administration, and Federal Highway Administration regulations.

(b) A registered business shall, at least annually, provide instruction and training on its comprehensive safety policy, including the job briefing policy and procedures, and the personal protective equipment policy. The comprehensive safety policy shall conform to ANSI Z133 Safety Requirements for Arboricultural Operations, which is incorporated herein by reference, as amended and supplemented, which includes the applicable OSHA, Federal Motor Carrier Safety Administration, and Federal Highway Administration regulations.

(c) A registered business shall submit to the Board by January 31st of the year following completion, documentation of its employee safety training, including the Model Tree Safety Training Checklist Form as set forth at N.J.A.C. 7:3A-2.15.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.15 Employee safety training documentation

(a) A registered business shall submit documentation of its safety training completed during the preceding year to the Board by January 31st of the following year. Employee safety training may be done either in-house or by an outside company. If an outside company is used, the registered business shall obtain and submit documentation of its safety training from the outside company by the January 31st deadline.

(b) Documentation for employee safety training shall consist of the following:

1. Employee attendance forms setting forth the names of individuals attending each training course;

2. Training course information forms setting forth the subject matter and format of each training course; and

3. The Model Tree Safety Training Checklist Form identifying the type of safety training the company provides for its employees.

(c) All forms for documentation of safety training shall be available on the Board website at www.njtreeexperts.org and at the Board office. Additional information describing the content of any training session may be submitted to the Board at the discretion of the registered business. The Board may, at its discretion, request more detailed information regarding the content of any training sessions.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.16 Duty to cooperate with quarantine restrictions

In addition to adhering to all applicable Federal, State, and local laws, if a quarantine area is established by an authorized State or Federal agency having jurisdiction within the State for the purpose of controlling, managing, or preventing the spread of an injurious or harmful insect or disease, registered businesses and licensees shall cooperate fully and adhere to all mandated restrictions. Any business or licensee that fails to cooperate or adhere to such restrictions shall be in violation of N.J.S.A. 45:15C-20 and this chapter and subject to penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-2.17 Vehicle business registration number

(a) A registered business shall prominently display the NJTC number assigned to that business by the Board on every service vehicle operated by that business to perform tree care services in New Jersey.

(b) The NJTC number shall be in figures each measuring at least three inches high.

(c) The NJTC number shall be located on at least two sides of each vehicle.

(d) The NJTC number shall be in a color that contrasts with the background color of the vehicle.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 3 LICENSING

N.J. Admin. Code § 7:3A-3.1 Tree expert initial license and renewals

(a) No individual shall represent himself or herself to the public as a licensed tree expert or use any title, designation, word(s), letter, or abbreviations tending to indicate that such individual is a licensed tree expert without obtaining licensure as a tree expert by the Board. Licenses shall be issued to individuals only; no license shall be issued in the name of a corporation, firm, partnership, or other form of business organization.

(b) An initial license issued under this section shall be valid from the date of issuance until the end of the calendar year in which it was issued.

(c) A license renewal issued under N.J.A.C. 7:3A-3.10 shall be valid for a period of two years.

(d) A licensee shall notify the Board in writing within 30 days of any change to the address on record with the Board.

(e) A licensee shall notify the Board in writing, e-mail or facsimile at the Board office within 30 days if he or she leaves the employment of a business.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.2 Licensed tree expert examination application

(a) To apply for licensure as a licensed tree expert, an individual shall complete an application form, available on the Board's website at www.njtreeexperts.org, and submit the application to the Board together with:

1. Documentation showing that the applicant is at least 18 years of age;

2. Three letters of reference from professionals in the field of arboriculture or in a closely related field, who have first-hand knowledge of the candidate's work and moral character, including, but not limited to, the candidate's adherence to the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.2(a), by which the Board will determine whether a candidate meets the requirement of good moral character;

3. Documentation that the applicant has satisfied the following education and/or experience requirements:

i. A degree from a four-year college in forestry, arboriculture, ornamental horticulture, botany, nursery production, plant biology, plant physiology, ecology, horticulture, environmental planning and design, landscape architecture, natural resources, or an alternative curriculum together with a request that the Board find the alternative curriculum sufficient to satisfy the educational requirement;

ii. Two years of college with passing grades in at least three college courses related to arboriculture, such as botany, soils, plant science, plant biology, plant pathology, plant physiology, entomology, forestry, natural resources, ecology, horticulture, plant propagation, landscape construction or dendrology, and evidence of continuous employment in the practice of arboriculture for at least three years preceding the date of application; or

iii. Continuous employment in the practice of arboriculture for five years immediately preceding the date of application for licensure; and

4. Payment of the license application fee.

(b) To qualify to take the licensure examination on any scheduled examination date, the applicant shall submit a completed application, together with the other accompanying items required pursuant to (a) above, at least 90 days prior to the examination date.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.3 Board review of Licensed Tree Expert Examination applications

(a) The Board shall administer the processing of the applications. The Board shall notify a candidate in writing when his or her application is received and is deemed complete.

(b) The Board shall review each complete application received and determine whether the application indicates that the candidate meets the requirements set forth at N.J.A.C. 7:3A-3.2(a) and, therefore, qualifies to take the licensed tree expert licensure examination.

(c) If the Board, based on its review of an application, determines that the candidate qualifies to take the licensure examination, the Board shall notify the candidate in writing of this determination. Upon receipt of the notification, the candidate shall register on the Board's website at www.njtreeexperts.org for a scheduled licensure examination and submit to the Board the applicable examination fee set forth at N.J.A.C. 7:3A-6.1(a).

(d) The candidate shall register for an examination and pay the applicable examination fee at least 30 days prior to the examination date.

(e) If the Board is unable to verify by at least 10 days before the examination date that a candidate has registered and paid the examination fee in full, the candidate will not be admitted to the examination.

(f) If the candidate takes the licensure examination and receives a passing grade determined in accordance with N.J.A.C. 7:7A-4.1(e), the Board shall notify the candidate in writing, after voting to certify the examination results, that he or she has qualified for licensure as a licensed tree expert and that upon payment of the license initial fee listed at N.J.A.C. 7:7A-6.1(a), the Board shall grant the candidate a license.

(g) Upon receipt of the license initial fee, the Board shall assign the candidate a license number and issue to the candidate a license certificate and a license card that display the license number and evidence his or her licensure as a licensed tree expert.

(h) If the Board, based on its review of an application completed pursuant to N.J.A.C. 7:3A-3.2(a), determines the candidate does not meet one or more of the requirements set forth at N.J.A.C. 7:3A-3.2(a), or that the application is incomplete, the Board shall deny the application and notify the candidate in writing of the reasons for the denial. A denial of an application shall not prevent a candidate from correcting an application's deficiency(ies) and resubmitting it within 30 days or subsequently submitting a new application and payment of a new license application fee.

(i) The Board's determination as to a candidate's qualification to take the licensed tree expert licensure examination, shall constitute a final agency action for purposes of review under the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. unless the candidate elects to request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1 and the adjudicatory hearing procedure results in the Board's original determination not being upheld.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.4 Exemption from Licensed Tree Expert Examination

(a) Until April 12, 2018, the Board shall grant any individual licensure as a tree expert, without requiring that the individual sit for the licensure examination, provided that the individual submits an application for licensure as a tree expert pursuant to (b) below and the Board determines that the individual is of good moral character and has received certification as a tree expert pursuant to N.J.S.A. 45:15C-1 prior to April 17, 2017, that was valid and in force as of April 17, 2017, and is in good standing with the Board.

(b) An applicant for licensure under this section shall submit a copy of his or her most recent Certified Tree Expert (CTE) Certification Card to the Board's address along with a completed application on a form, which can be found on the Board's website at www.njtreeexperts.org.

(c) Upon receipt of the application together with a copy of the CTE Certification Card, the Board will determine whether the applicant meets the criteria set forth in (a) above and is, therefore, qualified for licensure under this section and shall notify the individual in writing of its decision. If the Board determines that an applicant is qualified, the Board shall notify the individual in writing of this determination and advise that the Board shall grant him or her licensure as a tree expert upon receipt of the license initial fee listed at N.J.A.C. 7:3A-6.1(a), less any fee the certified individual paid pursuant to N.J.A.C. 7:3A-4.3 during Fiscal Year 2017.

(d) Upon receipt of the payment of the fee amount due, the Board shall assign the individual a license number and issue to the individual a license certificate and a license card that display the license number and evidence of his or her licensure as a licensed tree expert.

(e) An initial license issued under this section shall be valid from the date of issuance until the end of the calendar year in which it was issued.

(f) If the Board determines that an applicant is not qualified for licensure under this section, the Board shall notify the individual in writing of this determination, give the reasons for its determination, and advise the individual that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.5 Tree care operator initial license and renewals

(a) No individual shall represent himself or herself to the public as a licensed tree care operator or use any title, designation, word(s), letter, or abbreviations tending to indicate that such an individual is a licensed tree care operator without being licensed by the Board. Licenses shall be issued to individuals only; no license shall be issued in the name of a corporation, firm, partnership, or other form of business organization.

(b) An initial license issued under this section shall be valid from the date of issuance until the end of the calendar year in which it was issued.

(c) A license renewal issued under N.J.A.C. 7:3A-3.10 shall be valid for a period of two years.

(d) A licensee shall notify the Board in writing within 30 days of any change of the address on record with the Board.

(e) A licensee shall notify the Board in writing, e-mail, or facsimile at the Board office within 30 days if he or she leaves the employment of a business.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.6 Licensed Tree Care Operator Examination application

(a) To apply for initial licensure as a licensed tree care operator, an individual shall complete an application form, available on the Board's website at www.njtreeexperts.org, and submit the application to the Board together with:

1. Documentation showing that the applicant is at least 18 years of age;

2. Three letters of reference from professionals in the field of arboriculture or in a closely related field, who have first-hand knowledge of the candidate's work and moral character, including, but not limited to, the candidate's adherence to the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.2(a), by which the Board will determine whether a candidate meets the requirement of good moral character;

3. Documentation that the applicant has satisfied the following education and/or experience requirements:

i. A degree from a four-year college in forestry, arboriculture, ornamental horticulture, botany, nursery production, plant biology, plant physiology, ecology, horticulture, environmental planning and design, landscape architecture, natural resources, or an alternative curriculum together with a request that the Board find the alternative curriculum sufficient to satisfy the educational requirement, and evidence of continuous employment in the practice of arboriculture for at least one year preceding the date of the application;

ii. Completed two years of college with passing grades in at least three college courses related to arboriculture, such as botany, soils, plant science, plant biology, plant pathology, plant physiology, entomology, forestry, natural resources, ecology, horticulture, plant propagation, landscape construction or dendrology, and evidence of continuous employment in the practice of arboriculture for at least two years preceding the date of application; or

iii. Evidence of continuous employment in the practice of arboriculture for three years immediately preceding the date of application for licensure; and

4. Payment of the license application fee.

(b) To qualify to take the licensure examination on any scheduled examination date, the applicant shall submit to the Board a completed application together with the other accompanying items required pursuant to (a) above, at least 90 days prior to the examination date.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.7 Board review of Licensed Tree Care Operator Examination applications

(a) The Board shall administer the processing of the applications. The Board shall notify a candidate in writing when his or her application is received and is deemed complete.

(b) The Board shall review each complete application received and determine whether the application indicates that the candidate meets the requirements set forth at N.J.A.C. 7:3A-3.6(a) and, therefore, qualifies to take the licensed tree care operator licensure examination.

(c) If the Board, based on its review of an application, determines that the candidate qualifies to take the licensure examination, the Board shall notify the candidate in writing of this determination. Upon receipt of the notification the candidate shall register on-line on the Board's website at www.njtreeexperts.org for a scheduled forthcoming licensure examination and submit to the Board the applicable examination fee, set forth at N.J.A.C. 7:3A-6.1(a). The candidate shall register for an examination and pay the examination fee at least 30 days prior to the examination date.

(d) If the Board is unable to verify by at least 10 days before the examination date that a candidate has registered and the examination fee has been paid in full, the candidate will not to be admitted to the examination.

(e) If the candidate takes the licensure examination and receives a passing grade determined in accordance with N.J.A.C. 7:3A-4.1(f), the Board shall notify the candidate in writing, after voting to certify the examination results, that he or she has qualified for initial licensure as a licensed tree care operator and that upon payment of the license initial fee listed at N.J.A.C. 7:3A-6.1(a), the Board shall grant the candidate a license.

(f) Upon receipt of the payment of the license initial fee, the Board shall assign the individual a license number and issue to the individual a license certificate and a license card that display the license number and evidence his or her licensure as a licensed tree care operator.

(g) If the Board, based on its review of an application carried out pursuant to N.J.A.C. 7:3A-3.6(a), determines the candidate does not meet one or more of the requirements set forth at N.J.A.C. 7:3A-3.6(a), the Board shall deny the application and notify the candidate in writing of the reasons for the denial. A denial of a candidate's application shall not prevent a candidate from correcting an application's deficiency(ies) and resubmitting it within 30 days, or subsequently submitting a new application and payment of a new license application fee.

(h) The Board's determination as to a candidate's qualification to take the licensed tree care operator licensure examination shall constitute a final agency action for purposes of review under the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., unless the candidate elects to request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1 and the adjudicatory hearing procedure results in the Board's original determination not being upheld.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.8 Exemption from Licensed Tree Care Operator Examination

(a) Until April 12, 2018, the Board shall grant any individual licensure as a tree care operator, without requiring that the individual sit for the licensure examination, provided that the individual submits an application for licensure as a tree care operator pursuant to (b) below and the Board determines that the individual is of good moral character and has documented in the application that he or she has been engaged in the practice of arboriculture since April 17, 2010.

(b) An applicant for licensure under this section shall submit a completed application on a form which can be found on the Board's website at www.njtreeexperts.org, and submit the application to the Board together with:

State or Federal income tax returns, with Social Security number redacted, since April 17, 2010, listing the individual's occupation and the name of the employer.

i. If exempt from paying taxes, the applicant may make a written request to the Board to submit alternative documentation of employment;

2. Three letters of reference from professionals in the field of arboriculture or in a closely related field, who have first-hand knowledge of the candidate's work and moral character; and

3. Payment of the license application fee.

(c) Upon receipt of the application and required accompanying documentation, the Board will determine whether the applicant meets the criteria set forth in (a) above and is, therefore, qualified for licensure under this section and shall notify the candidate in writing of its decision. If the Board determines that an applicant is qualified, the Board shall notify the individual in writing of this determination and advise that the Board shall grant him or her licensure as a tree care operator upon receipt of the license initial fee listed at N.J.A.C. 7:3A-6.1(a).

(d) Upon receipt of the payment of the license initial fee the Board shall assign the individual a license number and issue to the individual a license certificate and a license card that display the license number and evidence of his or her licensure as a licensed tree care operator.

(e) If the Board determines that an applicant is not qualified for licensure under this section, the Board shall notify the individual in writing of this determination, give the reasons for its determination, and advise the candidate that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.9 Reciprocity

(a) The Board may, in its discretion, grant a license to an individual who is the lawful holder of a substantially equivalent license or certification issued by another jurisdiction. The Board shall post on its website at www.njtreeexperts.org a listing of those certifications and licenses issued by other jurisdictions that it has determined to be substantially equivalent to either the tree expert or tree care operator license. The Board's considerations in making this determination shall include, but not be limited to, the requirements to be granted the subject certification or license, and the subjects, format, length, and question structure of the examination an individual must pass to obtain the certification or license.

(b) To apply for licensure based on reciprocity, an individual shall complete an application form, available on the Board's website at www.njtreeexperts.org, and submit the application to the Board together with:

1. Proof that he or she holds a valid certification or license that is recognized by the Board as being substantially equivalent to either the tree expert or tree care operator license; and

2. Payment of the reciprocity license application fee.

(c) The Board shall review each complete application received and determine whether the applicant qualifies to be granted licensure based on reciprocity. The Board shall not deem an applicant to qualify for licensure based on reciprocity unless:

1. The application includes proof that the applicant holds a valid certification or license issued by another jurisdiction that the Board recognizes as being substantially equivalent to either the tree expert or tree care operator license; and

2. The applicant is in good standing with the licensing agency for the issuing jurisdiction.

(d) If the Board determines that an individual qualifies for licensure under this section, the Board shall notify the candidate in writing that he or she is determined to qualify for initial licensure as a licensed tree expert or licensed tree care operator, as applicable, and that upon payment of the license initial fee listed at N.J.A.C. 7:3A-6.1(a), the Board shall grant the applicant a license.

(e) Upon receipt of the license initial fee, the Board shall assign the individual a license number and issue to the individual a license certificate and a license card that display the license number and evidence of his or her licensure. Upon the issuance of a license under the reciprocity process, the individual shall be considered licensed under this chapter.

(f) An initial license issued under this section shall be valid from the date of issuance until the end of the calendar year in which it was issued.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.10 License renewals

(a) Prior to expiration of the initial license, a licensee must apply for license renewal to retain his or her license. A licensed individual who seeks to renew his or her license shall submit a completed license renewal application, on a form available on the Board's website at www.njtreeexperts.org, together with documentation showing that he or she has successfully satisfied the continuing education requirements set forth at N.J.A.C. 7:3A-7.1(a) and payment of the license biennial renewal fee as set forth in N.J.A.C. 7:3A-6.1(a).

(b) Upon receipt of an application for license renewal, the Board will determine if the licensee qualifies for license renewal. The Board shall notify the licensee in writing if the application is renewed. If the license is renewed, the Board shall issue the licensee a new license card. If the renewal is denied, the notice shall state the reasons for the denial and advise the licensee that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

(c) A license renewed by the Board under this section shall be valid for a period of two years. A licensee must apply biennially for license renewal in the manner set forth in this section.

(d) If a licensee does not renew his or her license prior to its expiration date, the licensee may renew the license within 30 days after its expiration date by submitting a renewal application, license biennial renewal fee, and license late fee as set forth at N.J.A.C. 7:3A-6.1(a). During this 30-day period, the license shall remain valid and the licensee shall not be deemed to be unlawfully representing himself or herself to the public as a licensee.

(e) A license that is not renewed within 30 days of its expiration shall be automatically suspended. An individual who holds himself or herself out as a licensed tree expert or licensed tree care operator when his or her license is suspended shall be in violation of N.J.S.A. 45:15C-11 and shall be subject to civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.11 License reinstatement

(a) A licensee whose license has been suspended pursuant to N.J.A.C. 7:3A-3.10(d) due to failure to renew may be considered for reinstatement by the Board if the individual:

1. Submits a letter requesting reinstatement by the Board within three years of the expiration date of the individual's license;

Documents that he or she has successfully completed the continuing education requirements set forth at N.J.A.C. 7:3A-7.1(a) both for license period prior to the license's suspension and for each biennial license period during which the license was suspended;

3. Makes payment of the license reinstatement fee and any and all license late fee(s) as set forth at N.J.A.C. 7:3A-6.1(a); and

4. Makes payment of the license biennial renewal fee, if the deadline for license renewal passed during the individual's period of suspension.

(b) Upon receipt of request for reinstatement, the Board will consider whether the individual qualifies for reinstatement of his or her license.

(c) If the Board determines that the individual qualifies for reinstatement, the Board shall reissue to the individual his or her original license certificate returned to the Board pursuant to N.J.A.C. 7:3A-3.12(b) or, in accordance with N.J.A.C. 7:3A-3.12(c), a duplicate thereof, and provide him or her with a license card that displays the individual's original license number and evidences his or her licensure.

(d) If the Board determines that the individual is not qualified for reinstatement, the Board shall so notify the individual and include the reasons for its determination and shall advise that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

(e) An individual whose license has been suspended for more than three years may not apply for reinstatement. To acquire licensure, the individual must reapply in accordance with N.J.A.C. 7:3A-3.2 to become licensed as a licensed tree expert, or in accordance with N.J.A.C. 7:3A-3.6 to become licensed as a licensed tree care operator.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.12 License certificate retention and replacement

(a) A licensed tree expert or licensed tree care operator shall retain his or her license certificate throughout the period of licensure. If the licensee is employed by a registered business, the licensee shall allow the business to display his or her license certificate at the office location where he or she is assigned. However, if the licensee is no longer employed at the location, the certificate shall be retained by the licensee as he or she leaves.

(b) A license number and the license certificate containing such license number issued by the Board, though conferred on a licensed tree expert or licensed tree care operator for his or her period of licensure, remain the property of the State of New Jersey. If the Board suspends, refuses to renew, or revokes an individual's license, the individual shall return the license certificate to the Board within 30 days of his or her receipt of written notice of the Board's decision and shall remove the license number from all advertising and anywhere else the license number is displayed or otherwise communicated. Failure to comply with this requirement shall subject the individual to civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(c) The Board shall issue a duplicate certificate to a licensed tree expert or licensed tree care operator upon receipt by the Board of an affidavit or certified statement in which the licensee attests that the original was either lost, destroyed, mutilated, or is otherwise no longer in the custody of and cannot be recovered by the licensee.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-3.13 Possession of license card; replacements

(a) The Board shall issue to a licensee:

1. Upon initial licensure, a license card valid for the initial license period; and

2. Upon a licensee's renewal of his or her license pursuant to N.J.A.C. 7:3A-3.10(a) and (b), the Board will issue to the licensee a new license card valid for two years.

(b) The license card shall identify the licensee's name, license number, and type of license held by the licensee and give the expiration date of the license period. The license card may be used by the licensee as proof of holding a valid license.

(c) If the Board suspends, revokes, or refuses to renew a license, the licensee shall return the license card to the Board within 30 days of his or her receipt of written notice of the Board's decision. Failure to comply with this requirement shall subject the individual to civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(d) The Board shall issue a duplicate license card to a licensed tree expert or licensed tree care operator upon receipt by the Board of an affidavit or certified statement in which the licensee attests that the original was either lost, destroyed, mutilated, or is otherwise no longer in the custody of, and cannot be recovered by, the licensee.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 4 EXAMINATIONS

N.J. Admin. Code § 7:3A-4.1 Examination notices; procedure

(a) The Board shall determine whether an individual is qualified to take the licensure examination based upon the application and documentation submitted by the individual pursuant to N.J.A.C. 7:3A-3.2 for LTE candidates or N.J.A.C. 7:3A-3.6(a) for LTCO candidates.

(b) A candidate who has received written notice from the Board that he or she is qualified to take a licensure examination shall consult the Board's website at www.njtreeexperts.org to determine the dates on which the applicable examination is scheduled to be offered and shall register to take the examination on a specific date by completing and submitting a registration form also found on the Board's website. A candidate shall submit a registration form no later than 30 days prior to the examination date.

(c) The Board shall issue each eligible candidate who timely registers to take a licensure examination an identification number to be used on the examination in place of his or her name.

(d) To be admitted to the examination room on the date of the examination, a candidate shall produce at the examination location valid government-issued photo identification, such as a driver's license or passport.

(e) The licensure examination for tree expert licensure consists of a written section and a field section. An overall grade of 70 percent when the candidate's grades on the written and field sections are averaged is required to pass the examination.

(f) The licensure examination for tree care operator licensure consists of a written section only. A grade of 70 percent is required to pass the written examination.

(g) After an examination has been administered, each candidate who took the examination will be notified of his or her grade in writing.

(h) A candidate who scores less than 70 percent on the written section of the tree expert licensure examination or on the tree care operator licensure examination may again register, in accordance with (b) above, and retake the examination, on a date that is no sooner than 30 days after the date of the previously-taken examination.

(i) A candidate is eligible to take and, if applicable, retake a licensure examination for one year from the date the Board notifies him or her in writing that he or she is qualified to take the examination. If, after a year from the date of notice, the individual wishes to sit for the licensure examination he or she must submit a new application in accordance with N.J.A.C. 7:3A-3.2(a) or 3.6(a) and again pay the license application and examination fees as set forth in N.J.A.C. 7:3A-6.1(a).

(j) A candidate for tree expert licensure must receive a combined passing grade on both the written and field sections of the exam that averages 70 percent. A minimum score of 70 percent is needed on the written section of the exam and a minimum of 65 percent is needed on the field section of the exam. A candidate who fails either the written or field section of the exam may elect to retake only the section of the exam he or she did not pass at the next examination for which he or she registers. A candidate who passes the previously failed section on the second testing date and scores an average combined score of 70 percent with the previous passing section of the exam shall have met the examination requirements. A candidate who takes the previously failed section a second time but does not score an average combined score of 70 percent with the previously failed section of the exam shall be required to take and pass both the written and field sections at the next examination for which he or she registers.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 5 ADVERTISING

N.J. Admin. Code § 7:3A-5.1 Constraints on advertising by individuals

(a) An individual shall not advertise or represent himself or herself to the public, or practice as a licensed tree expert or licensed tree care operator, or use any title, designation, word(s), letter, or abbreviations tending to indicate that such an individual is licensed, unless the individual has been licensed by the Board and he or she is in good standing with the Board as defined at N.J.A.C. 7:3A-1.5.

(b) If an individual fails to comply with (a) above, and if the individual is a licensee but not in good standing with the Board, the Board may suspend or revoke the individual's license, and/or assess civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a). If the individual is not a licensee, the Board may refuse to issue a license to the individual or to admit the individual to take a licensure examination.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-5.2 Advertising by licensee

(a) Any licensed tree expert who wishes to use the licensed tree expert designation in advertising shall include his or her name and license number in any form of advertisement relating to tree care services, using the following format:

1. Name of licensed individual;

2. The abbreviation LTE or the words "Licensed Tree Expert"; and

3. The licensee's license number, preceded by the "#" symbol.

(b) An example of the correct advertisement form for a licensed tree expert is:

1. John Doe, LTE #100; or

2. John Doe, Licensed Tree Expert #100.

(c) Any licensed tree care operator who wishes to use the licensed tree care operator designation in advertising shall include his or her name and license number in any form of advertisement relating to tree care services, using the following format:

1. Name of licensed individual;

2. The abbreviation LTCO or the words "Licensed Tree Care Operator"; and

3. The licensee's license number, preceded by the "#" symbol.

(d) An example of the correct advertisement form for a licensed tree care operator is:

1. John Doe, LTCO #100; or

2. John Doe, Licensed Tree Care Operator #100.

(e) A licensee whose license is revoked or suspended shall, within 30 days of his or her receipt of written notice of the Board's decision, change all of his or her existing forms of electronic advertising to remove any reference to licensing by the Board, and shall, before the next publication or renewal date, change all of his or her existing forms of print advertising to remove any reference to licensing by the Board.

(f) All forms of advertisement shall conform to the requirements of this section within 30 days following the promulgation of this chapter.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-5.3 Advertising by businesses

(a) No business shall advertise or represent itself to the public as offering tree care services within the State of New Jersey or use any title, designation, word(s), letter, or abbreviations tending to indicate that a business is a registered business unless it in fact is registered with the Board of Tree Experts.

(b) A registered business shall advertise only those tree care services which its licensee(s) is/are licensed to perform. For example, if a registered business employs only LTCOs, it shall not advertise services that are exclusively LTE services.

(c) Failure to comply with this section may result in the suspension or revocation of the business's registration, refusal by the Board to register the business, and/or the issuance of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(d) Any registered business that wishes to advertise shall include its name and its registration number in any form of medium of advertisement relating to tree care services. The registered business shall identify its registration number in the following way:

1. The words "NJTC Registration"; and

2. The business's registration number, preceded by the "#" symbol.

(e) An example of the correct advertisement form for businesses is:

1. John Doe Tree Experts, NJTC Registration #100.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 6 FEE SCHEDULE

N.J. Admin. Code § 7:3A-6.1 Fee schedule

(a) The following fees shall be charged by the Board. All fees are nonrefundable.

| 1. License application fee ..................................................... | . $ 50.00 | | --- | --- | | 2. Examination fees | | | i. LTCO written exam fee .................................................. | . $ 100.00 | | ii. LTE written exam fee ..................................................... | $ 100.00 | | iii. LTE field exam fee ......................................................... | $ 100.00 | | 3. License initial fee ............................................................. | . $ 75.00 | | 4. License biennial renewal fee ............................................ | $ 150.00 | | 5. License late fee ................................................................. | . $ 25.00 | | 6. License reinstatement fee ................................................. | . $ 25.00 | | 7. Reciprocity license application fee .................................. | ... $ 75.00 | | 8. Business biennial registration fee .................................... | $ 200.00 | | 9. Business registration late fee ............................................. | $ 25.00 |

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 7 CONTINUING EDUCATION

N.J. Admin. Code § 7:3A-7.1 Continuing education requirements; criteria; waiver of requirements

(a) A licensed tree expert or licensed tree care operator shall earn 32 credits or more of continuing education during the first two-year license period in which the individual obtains licensure and each succeeding two-year license period.

(b) A licensed tree expert or licensed tree care operator may earn continuing education credit for seminars, courses, programs, presentations, continuing education quizzes, or lectures administered by approved arboricultural organizations successfully completed during the biennial licensure period in which the continuing education was completed as set forth at N.J.A.C. 7:3A-7.5. No continuing education credits may be carried over into a succeeding biennial period. However, in the case of qualifying for reinstatement of a suspended license, credit earned in a successive biennial period may be applied toward qualifying for reinstatement.

(c) A licensee may request that the Board grant a waiver of the continuing education requirement for any of the following reasons: illness certified by a physician, disability, military deployment, or other good cause deemed acceptable by the Board. Any licensee seeking a waiver of the continuing education requirements shall submit a request to the Board in writing specifying the reasons for the request by October 31 of the second year of the two-year biennial license period. The licensee shall also provide the Board with such information as it may reasonably request in support of a waiver request. The Board shall notify the licensee in writing whether it approves the licensee's waiver request. In the case of a denial, the Board shall explain its reasons for denying the request and shall advise the candidate that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

(d) Participants will receive one continuing education credit for each hour of attendance or teaching that includes at least 50 minutes of instructional content.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-7.2 Continuing education programs and courses

(a) A licensee may obtain continuing education credit for the following types of educational activities:

1. Attendance at or teaching of courses or programs approved by the Board pursuant to (b) below; and

2. Attendance at or teaching of seminars, courses, conferences, or other programs, if the Board is satisfied that it is appropriate for the purpose of keeping the licensee apprised of advancements and new developments in the profession.

i. A suitable program for a licensed tree expert might, for example, be a program focused on any subject covered in the tree expert licensure examination, such as pruning, insects and diseases, planting, fertilization, lightning protection, tree identification, diagnosing tree problems, and cabling and bracing:; and

ii. A suitable program for a licensed tree care operator might, for example, be a program focused on any subject covered in the tree care operator licensure examination, such as general workplace safety, tree identification, tree physiology, and safe use of equipment;

3. Attendance or teaching and successful completion of undergraduate or graduate course work relevant to arboriculture or urban forestry beyond that required for professional licensure and approved by the Board, at an accredited university with a maximum of nine credits allowed for each course;

4. Attendance at or teaching of courses, programs, or seminars offered by universities that are directly related to the practice of arboriculture;

5. Completion of a continuing education quiz published by an arboricultural organization approved by the Board as a provider of quizzes. A participant who completes the quiz with a minimum score of 70 percent may receive the number of credits assigned to the quiz by the organization that offers the quiz. A list of approved organizations is posted on the Board's website at www.njtreeexperts.org; and

6. Preparation of a paper, publication or presentation, provided the subject matter of the paper, publication, or presentation is directly related to the practice or theory of arboriculture or urban forestry, as determined by the Board. One credit will be awarded for every two pages of arboricultural content. The paper, publication, or presentation shall be submitted to the Board's e-mail address or to its physical mailing address as posted on the Board's website at www.njtreeexperts.org for its review to determine the number of credits to be granted.

(b) If an educational activity is not one that has been pre-qualified pursuant to N.J.A.C. 7:3A-7.5(a), at the request of a licensee, the Board will make a determination as to whether it will approve continuing education credit for participation in the activity and the maximum number of credits it will allow to be taken for the activity.

1. To obtain advance approval, the licensee shall submit to the Board, at least 45 days prior to the activity, or the initiation of the activity, as applicable, a description of the activity, such as an announcement of the activity published by its sponsor, including the dates and hours of the activity; and

2. To obtain approval after the activity has occurred, the licensee shall submit to the Board a description of the activity, such as the description provided by its sponsor, including dates and hours of the program, together with written verification by the sponsor of the licensee's attendance or participation.

(c) Once the Board has pre-qualified an offering pursuant to N.J.A.C. 7:3A-7.5 or approved an educational activity for continuing education credit at the request of licensee pursuant to (b) above, the Board will post notice on its website at www.njtreeexperts.org that the event has been approved for continuing education credit. Such posting indicates that any licensee may obtain continuing education credit for participating in the activity.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-7.3 Compliance with continuing education requirements; audits

(a) A licensee applying for license renewal shall confirm on the renewal application that he or she has earned 32 continuing education credits as required during the preceding biennial period as set forth at N.J.A.C. 7:3A-7.1(a).

(b) A licensee's confirmation of fulfillment of the continuing education requirement shall be subject to audit by the Board. A licensee shall, upon request of the Board, submit documentation, in accordance with N.J.A.C. 7:3A-7.4, of his or her completion of the continuing education activities as claimed. Failure to provide, or falsification of, the documentation submitted to the Board may result in immediate suspension of the individual's license and/or civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a), and may result in the denial of the application for license renewal until the submitted documentation has been corrected to the satisfaction of the Board.

(c) A licensee shall retain documentation of completed continuing education activities for a period of five years.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-7.4 Continuing education documentation

(a) A licensee shall provide documentation as follows to be credited by the Board with completion of continuing education credits:

1. For documentation of attendance at an offering that has been pre-qualified by the Board, the verification of attendance furnished by the provider to each attendee as set forth at N.J.A.C. 7:3A-7.5(c);

2. For documentation of attendance at a seminar, conference, or other program for which the licensee received advanced or subsequent approval by the Board, a description of the program prepared by the sponsor, including the dates and hours of the program, and written verification by the sponsor of the licensee's attendance;

3. For documentation of completion of a continuing education quiz, verification by the publishing organization that the licensee took and completed the quiz, and received a score of at least 70 percent. The verification must be on official organization letterhead and signed by an officer of the organization or an official print-out generated by that organization's website;

4. For documentation of preparation of a publication, a copy of the final published publication; and

5. For documentation of preparation of a presentation, a copy of the presentation, the date, time, and location that the presentation was given, and written verification that the presentation was given from the sponsoring organization on official letterhead and signed by an officer of the organization.

(b) The Board may disallow any continuing education credit claimed by a licensee if the activity on which it is based is not relevant to the practice or theory of arboriculture or urban forestry.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-7.5 Procedures for pre-qualification of continuing education offerings

(a) The Board may, at its discretion, review an educational offering, such as a seminar, course, program, presentation, lecture, or quiz to be offered by a college, university, and other institution or organization, to determine whether a licensee may utilize completion of the offering as a basis for earning continuing education credits.

(b) If a provider wants to have a seminar, course, program, presentation, lecture, quiz, or other offering be considered for pre-qualification by the Board as eligible to be used by a licensee to earn continuing education credits, the provider shall, at least 45 days prior to the date of the offering, submit a request for pre-qualification to the Board, together with:

1. A detailed description of the offering, its content, and the number of hours of instruction it will entail; and

2. A summary of the qualifications of the instructor, presenter, and/or content preparer, as applicable.

(c) Upon receipt of a request for pre-qualification of an educational offering, the Board will review the material submitted and determine whether the offering is eligible for use by licensees as a basis for earning continuing education credits, as set forth at N.J.A.C. 7:3A-7.2(a). The Board shall notify the provider in writing of its decision and, if the request is denied, give the reason therefor and advise the provider that he or she may request an adjudicatory hearing pursuant to N.J.A.C. 7:3A-10.1.

(d) If a request for pre-qualification of an educational offering is approved by the Board, the Board shall inform the provider as to the maximum number of continuing education credits it will allow for participation and that, for credit to be granted to attendees, the provider must monitor the attendance at or participation in the offering and must furnish to each successful participant a document verifying his or her attendance and completion. This document shall include at least the following information:

1. The title, date, and location of the offering;

2. The number of hours of attendance or participation, and the maximum number of continuing education credits that the Board will allow for participation;

3. The name and address of the provider; and

4. The name and signature of the provider's representative who is responsible for monitoring attendance.

(e) A provider shall not exclude from the course or program any licensee who is not a member of the sponsoring group or association but may impose a reasonable differential in course or program fees based upon membership within a group or association.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 8 STANDARDS OF PRACTICE AND ETHICS

N.J. Admin. Code § 7:3A-8.1 Conformance with certain industry standards and applicable OSHA regulations

(a) Each licensee and each registered business providing tree care services for hire in New Jersey shall adhere to the version of the following standards in effect at the time the tree care services in question were performed:

1. The Dictionary of Standard Definitions for the Green Industry, 2009-2010 edition, which is incorporated herein by reference, as amended and supplemented, and available from the Tree Care Industry Association, 136 Harvey Road, Suite 101, Londonderry, NH 03053 shall be the reference standard for nomenclature and terminology for all practices that fall under this chapter unless otherwise defined at N.J.A.C. 7:3A-1.5;

2. The following standards of practice, available from the Tree Care Industry Association, 136 Harvey Road, Suite 101, Londonderry, NH 03053 and the International Society of Arboriculture, PO Box 3129, Champaign, IL 61826, shall be incorporated by reference, as amended and supplemented:

i. ANSI A300 American National Standard for Tree Care Operations--Tree, Shrub, and Other Woody Plant Management, which includes: 2014 Pruning (Part 1), 2011 Soil Management (modification, fertilization, and drainage) (Part 2), 2013 Supplemental Support Systems (Part 3), 2014 Lightning Protection Systems (Part 4), 2012 Management of Trees and Shrubs During Site Planning, Site Development, and Construction (Part 5), 2012 Planting and Transplanting (Part 6), 2012 Integrated Vegetation Management (Electric Utility Rights-of-Way) (Part 7), 2013 Root Management (Part 8), 2011 Tree Risk Assessment (Tree Structure Assessment) (Part 9), and 2016 Integrated Pest Management (Part 10);

ii. ANSI Z60.1-2014, American Standards for Nursery Stock;

iii. ANSI Z133-2012, Safety Standards for Arboricultural Operations; and

iv. The applicable OSHA, Federal Motor Carrier Safety Administration, and Federal Highway Administration regulation, which are set forth in ANSI Z133-2012.

3. Each of the Best Management Practices in the series published by the International Society of Arboriculture, incorporated herein, as amended and supplemented, including Tree Planting (2005), Tree Lightning Protection Systems, Second Edition (2008), Tree and Shrub Fertilization (2007), Integrated Pest Management (2007), Managing Trees During Construction (2008), Tree Support Systems: Cabling, Bracing, Guying, and Propping Second Edition (2007), Utility Pruning of Trees (2004), Tree Pruning Second Edition (2008), Tree Inventories Second Edition (2013), Integrated Vegetation Management Second Edition (2013), and Tree Risk Assessment (2011), as applicable to the practices being performed.

(b) Failure to conform to the standards of practice and safety requirements set forth in (a) above shall constitute a violation of the Tree Expert and Tree Care Operators Licensing Act and this chapter and may result in suspension or revocation of the business's registration or the licensee's license and/or imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-8.2 Canons of professional ethics and standards of conduct applicable to licensees

(a) The canons of professional ethics and standards of conduct for licensees is set forth in this section. A licensee shall:

1. Adhere to the highest standards of integrity, honesty, and skill to inspire and instill public trust and confidence;

2. Remain reasonably informed about current advances in technology and arboricultural techniques, practice, and standards of practice within the professional community;

3. Honestly and accurately describe to prospective clients the likely results of contemplated services, to the extent reasonably necessary to permit a client to make an informed decision regarding the retention of services;

4. Undertake to perform professional services only when he or she, together with those who may be engaged as consultants, are qualified by education, training, and experience in the specific scope of contractual obligations and technical areas involved;

5. Base expert testimony on information found in publications typically relied upon in the profession and/or well-accepted standards and practices of the profession;

6. Maintain a high regard for the safety, health, and welfare of the general public in the performance of his or her professional duties;

7. Render professional services in a manner that is not misleading, false, fraudulent, or grossly negligent;

8. When making any public statement on an arboricultural matter disclose when he or she is being compensated for making such statements; and

9. Accurately disclose his or her qualifications to prospective clients for any contracted work, if asked.

(b) Failure to abide by the canons of professional ethics and standards of conduct set forth in (a) above shall result in suspension or revocation of the offender's license, refusal by the Board to renew the offender's license or to admit the individual to sit for a licensing examination as set forth at N.J.A.C. 7:3A-9.4 and 9.5, and/or imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(c) Wrongful conduct in the practice of professional services by licensees includes:

1. Handling or neglecting to handle professional services in such a manner that the conduct constitutes gross negligence, malpractice, or gross incompetence;

2. Exhibiting a pattern or repeated acts of neglect, negligence, malpractice, or incompetence in the performance of professional services;

3. Engaging in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the performance of professional services;

4. Using or approving the use of false, fraudulent, or deceptive advertising;

5. Charging a fee for work not done or hours not spent in the performance of professional services; or

6. Failing to comply with a standard set forth at N.J.A.C. 7:3A-8.1(a) or (b).

(d) Engaging in wrongful conduct shall result in suspension or revocation of the offender's license, refusal by the Board to renew the offender's license or to admit the individual to sit for a licensing examination for licensure as set forth at N.J.A.C. 7:3A-9.4 and 9.5, and/or imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-8.3 Canons of professional ethics and standards of conduct applicable to registered businesses

(a) The canons of professional ethics and standards of conduct for registered businesses is set forth in this section. A registered business shall:

1. Adhere to established standards of advertising and selling;

2. Honestly represent products and services;

Conduct business in an honest manner and abide by the law;

4. Openly identify the principal office, any branch office, and the ownership of the business;

5. Abide by all written agreements and verbal representations;

6. Address marketplace disputes quickly, professionally, and in good faith;

7. Protect any data collected against mishandling and fraud;

Approach all business dealings, marketplace transactions, and commitments with integrity, and conduct business in a fair and just manner in dealing with the public, employees, and other businesses;

9. Provide for the safety and training of employees to ensure a healthy work environment;

10. Stay current and educate employees and clients in the most current research and practices available to the industry;

11. Comply with all applicable laws and rules including quarantine restrictions established by a State or Federal agency having jurisdiction in New Jersey; and

12. Adhere to the industry standards set forth at N.J.A.C. 7:3A-8.1(a).

(b) Failure to abide by the canons of professional ethics and standards of conduct set forth in (a) above shall result in suspension or revocation of the offender's registration as set forth at N.J.A.C. 7:3A-9.2 and 9.3, refusal by the Board to renew the offender's business registration and/or imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

(c) Wrongful conduct by a registered business shall include:

1. Failure to demonstrate that at least one licensee, who may be the employer, or an employee engaged in the performance of or supervision of employees who provide LTE or LTCO services, is assigned to the principal office and to each branch office of the business from which tree care services are provided for hire in New Jersey. If services that are exclusively LTE services are performed, the licensee shall be in possession of a tree expert license;

2. Failure to reasonably ensure the safe operation of all equipment used in the performance of tree expert or tree care operator services;

3. Allowing work to be conducted in a manner not in compliance with the standards set forth at N.J.A.C. 7:3A-8.1(a) and (b);

4. Failure to provide instruction and training for its employees as required by N.J.A.C. 7:3A-2.14;

5. Failure to hold the requisite amount of worker's compensation and general liability insurance or a letter of credit as required at N.J.A.C. 7:3A-2.11;

6. Engaging in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of his or her business;

7. Having been found guilty by a court of law of gross negligence or incompetence in the rendering of tree care services;

8. Having had its authority to engage in tree expert or tree care operator services revoked or suspended by any other state, agency, or authority;

9. Failure to comply with the provisions of the Tree Experts and Tree Care Operators Licensing Act and this chapter;

10. Engaging in any form of false or misleading advertising or promotional activities; and

11. Failure to maintain records as required at N.J.A.C. 7:3A-2.12.

(d) Engaging in wrongful conduct shall result in suspension or revocation of the offender's registration as set forth at N.J.A.C. 7:3A-9.2 and 9.3, refusal by the Board to renew the offender's business registration and/or imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-8.4 Duty to cooperate

(a) All licensees and registered businesses have the duty to cooperate fully with the Department and the Board in any investigation or adjudication of an alleged violation of the Tree Experts and Tree Care Operators Licensing Act and this chapter. All licensees and registered businesses shall provide copies of any documents requested by the Department and/or the Board in connection with such investigation or adjudication.

(b) For a licensee, failure to comply with the requirements of this section shall result in suspension or revocation of the offender's license as set forth at N.J.A.C. 7:3A-9.4 and 9.5, refusal by the Board to renew the offender's license, and/or the imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a). For a registered business, failure to comply with the requirements of this section shall result in suspension or revocation of the offender's registration as set forth at N.J.A.C. 7:3A-9.2 and 9.3 or refusal by the Board to renew the offender's registration, and/or the imposition of civil administrative penalties as set forth at N.J.A.C. 7:3A-9.6(a).

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 9 COMPLIANCE AND ENFORCEMENT

N.J. Admin. Code § 7:3A-9.1 Inspection and investigation of unlawful activity

(a) Whenever it appears to the Board that a licensee or a business, whether or not it is a registered business, has engaged in, or is engaging in, any activity that is unlawful under the provisions of the Tree Experts and Tree Care Operators Licensing Act and this chapter, the Board may require the licensee or business to file a written statement, under oath, as to the facts and circumstances concerning the alleged violation. The form to be used in preparing such a statement is available on the Board's website at www.njtreeexperts.org.

(b) The Board may examine any person in connection with any act or practice that is subject to the Tree Experts and Tree Care Operators Licensing Act and this chapter.

(c) The Board or its representative may inspect any premises upon which a violation of the Tree Experts and Tree Care Operators Licensing Act and this chapter is alleged to have taken place, as well as the place of business of the licensee or business alleged to have violated the Tree Experts and Tree Care Operators Licensing Act and this chapter. This inspection may include questioning individuals, photographing work operations, documenting business registration numbers, vehicle identification numbers, and other information relevant to the Board's inspection. The Board will provide at least 24 hours notice to the licensee or business prior to an inspection. During an inspection under this section, the licensee or business shall allow the Board or its representative access to all areas of the place of business and comply with any reasonable request for records or documents pertaining to the alleged violation, and shall make available for inspection any equipment relevant to the alleged violation.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.2 Suspension of business registration

(a) The Board may suspend the registration of any registered business, after notice as set forth at N.J.A.C. 7:3A-9.7 and a hearing as set forth at N.J.A.C. 7:3A-10.1, where:

1. The business is found in violation of the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.3(a);

2. The business is found in violation of the industry standards of practice or safety requirements as set forth at N.J.A.C. 7:3A-8.1(a);

3. The business has engaged in wrongful conduct as defined at N.J.A.C. 7:3A-8.3(c);

4. The business has failed to demonstrate that the employer, or at least one employee in each principal office and branch office location who is responsible for the supervision of workers in the performance of tree expert or tree care operator services, is in possession of a tree expert license or a tree care operator license;

5. The business has failed to ensure the safe operation of all equipment used in the performance of tree expert or tree care operator services;

6. The business has failed to provide instruction and training for its employees as required by the Act and this chapter;

7. The business has engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of business;

8. The business has been found guilty of gross negligence or incompetence;

9. The business has had the authority to engage in tree expert or tree care operator services revoked or suspended by any other state, agency, or authority;

10. The business has failed to comply with the provisions of the Act or this chapter;

11. The business has engaged in any form of false or misleading advertising or promotional activities; or

12. The business has failed to maintain records required by the Board.

(b) In determining whether to suspend a registration and, if so, the length of suspension, the Board will consider the facts and circumstances of the particular case, as well as the severity, frequency, and duration of the violation.

(c) The notice of suspension issued by the Board shall set forth the violation and the length of time for which the suspension will be in effect.

(d) Any business that has had its registration suspended must surrender its registration certificate to the Board within 10 business days from the date the suspension takes effect.

(e) Any business that has had its registration suspended may not advertise, operate, or perform any tree care services for hire in New Jersey while its registration is suspended.

(f) Any business that has had its registration suspended, may reapply for registration on or after the date, if any, set forth in the notice of suspension issued by the Board when the business is eligible to reapply for registration. The reapplication process shall include the submission of all forms and fees required by N.J.A.C. 7:3A-2 and 6.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.3 Revocation of business registration

(a) The Board may revoke the registration of any registered business, after notice as set forth at N.J.A.C. 7:3A-9.7 and a hearing as set forth at N.J.A.C. 7:3A-10.1, where:

1. The business is found in violation of the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.3(a);

2. The business is found in violation of the industry standards of practice and/or safety requirements as set forth at N.J.A.C. 7:3A-8.1(a);

3. The business has engaged in wrongful conduct as defined at N.J.A.C. 7:3A-8.3(c);

4. The business has failed to demonstrate that the employer, or at least one employee in each principal office and branch office location who is responsible for the supervision of workers in the performance of tree expert or tree care operator services, is in possession of a tree expert license or a tree care operator license;

5. The business has failed to ensure the safe operation of all equipment used in the performance of tree expert or tree care operator services;

6. The business has failed to provide instruction and training for its employees as required by the Act and this chapter;

7. The business has engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of business;

8. The business has been found guilty of gross negligence or incompetence;

9. The business has had its authority to engage in tree expert or tree care operator services revoked or suspended by any other state, agency, or authority;

10. The business has failed to comply with the provisions of the Act or this chapter;

11. The business has engaged in any form of false or misleading advertising or promotional activities; or

12. The business has failed to maintain records required by the Board.

(b) In determining whether to revoke a business registration, the Board will consider the facts and circumstances of the particular case, as well as the severity, frequency, and duration of the violation.

(c) The notice of revocation issued by the Board shall set forth the violation and the date, if any, on or after which the business will be eligible to reapply for registration.

(d) Any business whose registration is revoked may not advertise, operate, or perform any tree care services for hire in New Jersey.

(e) Any business that has had its registration revoked shall surrender its registration certificate to the Board within 10 business days from the date the revocation takes effect.

(f) Any business that has had its registration revoked, unless the revocation is final, may reapply for registration on or after the date, if any, set forth in the notice of revocation issued by the Board when the business is eligible to reapply for registration. The reapplication process shall include the submission of all forms and fees required by N.J.A.C. 7:3A-2 and 6.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.4 Suspension of license

(a) The Board may suspend an individual's license, after notice as set forth at N.J.A.C. 7:3A-9.7 and a hearing as set forth in N.J.A.C. 7:3A-10.1, where:

1. The individual is found in violation of the canons of professional ethics and standards of conduct set forth at N.J.A.C. 7:3A-8.2(a);

2. The individual is found in violation of the industry standards of practice and/or safety requirements as set forth at N.J.A.C. 7:3A-8.1(a);

3. The individual has engaged in wrongful conduct as defined at N.J.A.C. 7:3A-8.2(c);

4. The individual has obtained a license or authorization to sit for an examination through fraud, deception, or misrepresentation;

5. The individual has conducted work, or allowed work to be conducted under his or her supervision, in a manner not in compliance with standards approved by the Board;

6. The individual has engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of his or her business;

7. The individual has engaged in gross negligence or gross incompetence;

8. The individual has engaged in repeated acts of negligence or incompetence;

9. The individual has engaged in occupational misconduct, as determined by the Board;

10. The individual has been convicted of any crime involving moral turpitude, any crime related adversely to the activities regulated by the Board, or any crime of the first, second, third, or fourth degree;

11. The individual has had his or her authority to engage in the activities regulated by the Board revoked or suspended by any other state, agency, or authority;

12. The individual has failed to comply with the provisions of the Act or any rule promulgated pursuant thereto;

13. The individual is incapable, for medical or any other good cause, of discharging the functions of a licensee in a manner consistent with the health, safety, and welfare of the public;

14. The individual has engaged in any form of false or misleading advertising or promotional activities, including, but not limited to, holding himself or herself out to be a licensed tree expert, an arborist, licensed tree care operator, a tree surgeon, a tree care business, or any similar designation, or using the abbreviation "L.T.E." or "L.T.C.O." without being licensed as a tree expert or a tree care operator; or

15. The individual has failed to maintain records required by the Board.

(b) In determining whether to suspend a license and, if so, the length of the period of suspension, the Board will consider the facts and circumstances of the particular case, as well as the severity, frequency, and duration of the violation.

(c) The notice of suspension issued by the Board shall set forth the violation and the length of time for which the suspension will remain in effect.

(d) An individual who has had his or her license suspended must surrender his or her certificate to the Board within 10 business days from the date the suspension takes effect.

(e) Any individual who has had his or her license suspended may not represent himself or herself to the public to be licensed, including in any advertisement, and may not serve as a business's assigned licensee at its primary office or branch office during the period of suspension.

(f) The Board will notify the business that employs an individual whose license is suspended that the business may not, during the period of license suspension, consider its employment of the individual to satisfy its obligation under N.J.A.C. 7:3A-2.2(b) and 2.3(a) to assign at least one licensee to each principal office and to any branch office providing tree care services in New Jersey.

(g) Any individual that has had his or her license suspended may reapply for reinstatement on or after the date, if any, set forth in the notice of suspension issued by the Board when the individual is eligible to reapply for reinstatement. The reapplication process shall include the submission of all forms and fees required by N.J.A.C. 7:3A-3.2 and 3.6.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.5 Revocation of license

(a) The Board may revoke an individual's license, after notice as set forth at N.J.A.C. 7:3A-9.7 and a hearing as set forth in N.J.A.C. 7:3A-10.1, where:

1. The individual is found in violation of the canons of professional ethics and standards of conduct as set forth at N.J.A.C. 7:3A-8.2(a);

2. The individual is found in violation of the industry standards of practice and/or safety requirements as set forth at N.J.A.C. 7:3A-8.1(a);

3. The individual has engaged in wrongful conduct as defined at N.J.A.C. 7:3A-8.2(c);

4. The individual has obtained a license or authorization to sit for an examination through fraud, deception, or misrepresentation;

5. The individual has conducted work, or allowed work to be conducted under his or her supervision, in a manner not in compliance with standards approved by the Board;

6. The individual has engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of his or her business;

7. The individual has engaged in gross negligence or gross incompetence;

8. The individual has engaged in repeated acts of negligence or incompetence;

9. The individual has engaged in occupational misconduct, as determined by the Board;

10. The individual has been convicted of any crime involving moral turpitude, any crime related adversely to the activities regulated by the Board, or any crime of the first, second, third, or fourth degree;

11. The individual has had his or her authority to engage in the activities regulated by the Board revoked or suspended by any other state, agency, or authority;

12. The individual has failed to comply with the provisions of the Act or any rule promulgated pursuant thereto;

13. The individual is incapable, for medical or any other good cause, of discharging the functions of a licensee in a manner consistent with the health, safety, and welfare of the public;

14. The individual has engaged in any form of false or misleading advertising or promotional activities, including but not limited to, hold himself or herself out to be a licensed tree expert, an arborist, licensed tree care operator, a tree surgeon, a tree care business, or any similar designation, or using the abbreviation "L.T.E." or "L.T.C.O." without being licensed as a tree expert or a tree care operator; or

15. The individual has failed to maintain records required by the Board.

(b) In determining whether to revoke an individual's license and, if so, the length of the period until the individual may reapply for licensure, the Board will consider the facts and circumstances of the particular case, as well as the frequency and duration of the violation.

(c) The notice of revocation issued by the Board shall set forth the violation and the date, if any, on or after which the individual will be eligible to reapply for licensure.

(d) Any individual who has had his or her license revoked shall surrender his or her license to the Board within 10 business days from the date the revocation takes effect.

(e) Any individual whose license is revoked may not represent himself or herself to the public to be licensed, including in any advertisement, and may not serve as a business's assigned licensee at its primary office or a branch office.

(f) The Board will notify the business that employs an individual whose license is revoked that the business may not consider its employment of the individual to satisfy its obligation under N.J.A.C. 7:3A-2.2(b) and 2.3(a) to assign at least one licensee to each principal office and to any branch office providing tree care services in New Jersey.

(g) Any individual who has had his or her license revoked, unless the revocation is final, may reapply for licensure on or after the date, if any, set forth in the notice of revocation issued by the Board when the individual is eligible to reapply for licensure. The reapplication process shall include the submission of all forms and fees required by N.J.A.C. 7:3A-3.2 for a licensed tree expert candidate or N.J.A.C. 7:3A-3.6 for a licensed tree care operator candidate.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.6 Penalties

(a) If, upon investigation, the Board determines that there has been a violation of N.J.A.C. 7:3A-8.1(a), 8.2(a), and/or 8.3(a), the Board may issue civil administrative penalties pursuant to this section. The Board shall determine the amount of the administrative penalty based on the applicable Civil Administrative Base Penalty Matrix below, the type of violation, and whether it is the first, second, third, or subsequent time the business or licensee has incurred that type of violation:

Civil Administrative Base Penalty Matrix Applicable to Businesses

| Type of Violation | First Violation | Second Violation | Third and Each Subsequent Violation | | --- | --- | --- | --- | | Engaging in the business of providing tree care services for hire in New Jersey without first registering with the Board | $ 1,000 | $ 2,000 | $ 2,500 | | Failure to demonstrate that at least one licensee, who may be the employer or an employee engaged in the performance of or in the supervision of employees who provide LTE or LTCO services, is assigned to the principal office and to | $ 1,000 | $ 2,000 | $ 2,500 | | each branch from which tree care services are provided for hire in New Jersey | | | | | Failure to comply with the standards of practice and safety requirements set forth at N.J.A.C. 7:3A-8.1(a) | $ 1,000 | $ 2,000 | $ 2,500 | | Failure to comply with quarantine restrictions as set forth in N.J.A.C. 7:3A-2.16 | $ 1,000 | $ 2,000 | $ 2,500 | | Failure to provide instruction and training of employees as required by N.J.A.C. N.J.A.C. 7:3A-2.14 | $ 1,000 | $ 1,000 | $ 1,000 | | Failure to ensure the safe operation of all equipment used in the performance of tree care services | $ 1,000 | $ 1,000 | $ 1,000 | | Engaging in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of business, or in obtaining a business registration | $ 1,000 | $ 1,000 | $ 1,000 | | Engaging in any form of false or misleading advertising or promotional activities | $ 1,000 | $ 1,000 | $ 1,000 | | Failure to maintain records required by the Board | $ 500.00 | $ 1,000 | $ 2,000 | | Failure to abide by the canons of professional ethics and/or standards of conduct set forth at N.J.A.C. 7:3A-8. 3(a) | $ 500.00 | $ 1,000 | $ 2,000 | | Engaging in wrongful conduct in the practice of professional services set forth at N.J.A.C. 7:3A-8.3(c) | $ 500.00 | $ 1,000 | $ 2,000 | | Failure to cooperate fully with the Department of Environmental Protection or the Board in an investigation or adjudication of an alleged violation of this chapter | $ 1,000 | $ 2,000 | $ 2,500 |

Civil Administrative Base Penalty Matrix Applicable to Licensees

| Type of Violation | First Violation | Second Violation | Third and Each Subsequent Violation | | --- | --- | --- | --- | | Failure to comply with the industry standards of practice and safety requirements set forth at N.J.A.C. 7:3A-8.1(a) | $ 500.00 | $ 1,000 | $ 2,000 | | Engaging in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense in the course of business, in obtaining the authority to sit for an examination, or in obtaining a license | $ 500.00 | $ 1,000 | $ 1,000 | | Engaging in any form of false or misleading advertising or promotional activities | $ 500.00 | $ 1,000 | $ 2,000 | | Failure to maintain records required by the Board | $ 100.00 | $ 250.00 | $ 500.00 | | Failure to abide by the canons of professional ethics and/or standards of conduct set forth at N.J.A.C. 7:3A-8. 2(a) | $ 500.00 | $ 1,000 | $ 2,000 | | Failure to cooperate fully with the Department of Environmental Protection or the Board in an investigation or adjudication of an alleged violation of this chapter | $ 500.00 | $ 1,000 | $ 2,000 | | Engaging in wrongful conduct in the practice of professional services set forth at N.J.A.C. 7:3A-8.2(c) | $ 500.00 | $ 1,000 | $ 2,000 | | Failure to comply with the requirement to return the license certificate to the Board within 30 days of receipt of written notice of revocation, suspension, or non-renewal of the license | $ 500.00 | $ 1,000 | $ 2,000 | | Representing oneself to the public as a licensee without holding a valid license or during a period of suspension or revocation | $ 500.00 | $ 1,000 | $ 2,000 |

(b) In levying penalties, the Board shall consider each violation to be a separate and distinct violation. If the violation is of a continuing nature, each day during which a violation continues shall be deemed to constitute an additional, separate, and distinct violation and shall subject the violator each day to the penalty amount set forth in the applicable matrix above.

(c) The Board may, in its discretion, decrease the penalty amount levied from that listed in the Civil Administrative Base Penalty Matrices above on the basis of any of the following factor or combination of factors:

1. The compliance history of the violator;

2. The number, frequency, and severity of the violations;

3. Any measure taken by the violator to mitigate the violation or to prevent future violations;

4. The cooperation of the violator in correcting the violation and ensuring the violation does not occur again; and/or

5. Any other extenuating or mitigating circumstances.

(d) None of the factors set forth in (c) above shall constitute a defense to any violation.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

N.J. Admin. Code § 7:3A-9.7 Enforcement procedures

(a) For any notice of revocation, suspension, denial, or non-renewal of a license or a business registration, the Board will:

1. Serve the notice by certified mail, return receipt requested, or by personal service upon the individual or business that is subject to the order or notice;

2. Identify the individual or business subject to the notice;

3. Set forth a concise statement of the facts that are the grounds for the denial, suspension, revocation, or non-renewal;

4. Identify each of the specific provisions of this chapter under which the denial, suspension, revocation, or non-renewal is authorized; and

5. Notify the person or persons named in the notice of the right to request a contested case hearing pursuant to the provisions of N.J.A.C. 7:3A-10.1(a).

(b) For any notice of violation and/or assessment of civil administrative penalty, the Board will:

1. Serve the notice by certified mail, return receipt requested, or by personal service upon the individual or business which is subject to the order or notice;

2. Identify the individual or business that is subject to the notice;

3. Set forth a concise statement of the facts constituting the violation;

4. Identify each of the specific provisions of this chapter alleged to have been violated;

5. In a case where the civil administrative penalty assessment is reduced from the amount in the penalty matrix, and the reduction is based in whole or part on a commitment by the violator to implement one or more remedial actions, describe each remedial action that shall be implemented, or caused to be implemented, by the violator, and the time period within which such implementation shall commence and be completed; and

6. In the case of a civil administrative penalty assessment, specify the amount of the civil administrative penalty to be imposed in accordance with the Civil Administrative Base Penalty Matrices at N.J.A.C. 7:3A-9.6(a), as well as any factor or combination of the factors set forth at N.J.A.C. 7:3A-8.3(c)1 through 7 the Board took into consideration in determining the amount.

(c) If a civil administrative penalty is assessed against more than one person for the same violation or violations, each shall be jointly and severally liable for the penalty assessed.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Subchapter 10 HEARING REQUESTS

N.J. Admin. Code § 7:3A-10.1 Procedures to request a contested case hearing

(a) An individual aggrieved by a decision made by the Board, including a notice of assessment of civil administrative penalty, notice of denial, non-renewal, suspension, revocation of a license or business registration, or any other Board decision may request a contested case hearing pursuant to this section and the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq. A written request for a contested case hearing shall be submitted to the Board.

(b) All requests for a contested case hearing shall be received by the Board no later than 20 business days after written notice of any decision in (a) above was received by the individual requesting a hearing.

(c) A request for a contested case hearing shall be submitted in writing to the Board in accordance with (b) above and shall contain:

1. The name, address, and telephone number of the person making the hearing request;

2. A copy of the notice or other document conveying the decision being contested;

3. A brief and clear statement of the requester's interest in such decision;

4. A statement of all facts alleged to be at issue and their relevance to the Board's decision for which a hearing is requested. Any legal issues associated with the alleged facts at issue shall also be included;

5. An admission or denial of each of the Board's findings of fact;

6. A description of the facts and/or issues that the person believes constitutes a defense to any finding or assertion of the Board;

7. Information and documentation supporting the assertions and appeals of the person requesting the hearing and specific reference to, or copies of, other written documents relied upon to support the assertions and appeals;

8. An estimate of the time required for the hearing (in days or hours); and

9. A request, if necessary, for a barrier-free hearing location for physically disabled persons.

(d) If a request for a hearing fails to provide all the information required by (c) above, the Board may deny the request.

(e) All adjudicatory hearings shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(f) The Board shall determine whether any request for a contested case hearing should be granted. In making such determination, the Board shall evaluate the request to determine whether a contested case exists and whether there are issues of fact which, if assumed to be true, might change the Board's decision. Where a hearing request sets forth only issues of law, and does not set forth issues of fact, the request will be denied. Denial by the Board of a request for a contested case hearing shall constitute a final agency action of the Board for the purposes of judicial appeal pursuant to the Rules of New Jersey Civil Practice.

(g) If the Board determines a hearing should be granted, the Board shall refer the matter to the Office of Administrative Law (OAL) for an Administrative Law Judge (ALJ) to conduct the hearing. The Board shall affirm, reject, or modify the ALJ's initial decision within 45 days of its receipt thereof by issuing its own final decision. The Board's final decision shall constitute a final agency action for purposes of judicial review under the Administrative Procedure Act, N.J.S.A. 52:14B-12.

(h) The Board shall inform the individual who requested the hearing in writing whether the request for a hearing was granted. If the Board determines not to grant a hearing, it shall provide the reason for its denial in writing.

(i) If no hearing is requested, the assessment of civil administrative penalty; notice of denial, non-renewal, suspension, or revocation of a certificate or business permit; or any other Board decision from which a contested case hearing is to be provided pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., becomes a final order on the 21st day following receipt of the notice by the person.

(j) If a hearing request that has been submitted to the Board is subsequently withdrawn by the requester, the Board action for which the hearing request was requested becomes a final order upon such withdrawal.

(k) The jurisdiction of an appeal of a final agency decision lies with the Appellate Division of the Superior Court of the State of New Jersey, and only arises after the aggrieved individual has exhausted all administrative appeals.

(l) No license or business registration, which is the subject of a final order of suspension, revocation, non-renewal, or denial, shall be valid during the pendency of any action on appeal to a court of competent jurisdiction from that order, unless a stay of the final order has been granted by the court.

History

• Adopted by 49 N.J.R. 743(a), effective 4/17/2017

Chapter 4 THE NEW JERSEY REGISTER OF HISTORIC PLACES RULES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:4-1.1 Purpose

(a) This chapter shall constitute the rules of the Department of Environmental Protection concerning the preservation of the State's historic, architectural, archaeological, engineering, and cultural heritage in accordance with the New Jersey Register of Historic Places Act, N.J.S.A. 13:1B-15.128 et seq. This chapter contains rules on three distinct procedures administered by the Department through the Historic Preservation Office:

1. The nomination of historic sites to the New Jersey Register and the submission of historic sites to the National Register of Historic Places in a complementary process to 36 C.F.R. 60 which sets forth the Federal procedures for the National Register;

2. The procedures and criteria for evaluating the impact of public undertakings on historic properties listed in the New Jersey Register; and

3. A consultation process that may be used by other Department programs or non-Federal governmental agencies, in regard to identifying historic sites, assessing the potential effects of projects on such sites and recommending possible alternatives or mitigation for those effects.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 New Jersey Register 2503(a), 29 New Jersey Register 4103(b).
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 New Jersey Register 3161(a), 35 New Jersey Register 1410(a).
• Rewrote the section.

N.J. Admin. Code § 7:4-1.2 Severability

If any section, subsection, provision, clause or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter shall not be affected thereby.

N.J. Admin. Code § 7:4-1.3 Definitions

The following words and phrases, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. However, if a term is also defined at N.J.A.C. 7:4-8.1, then that definition shall supersede the definition in this section for purposes of N.J.A.C. 7:4-8.

"Acquisition" means the act or process of acquiring fee title or interest other than fee title of real property (including the acquisition of development rights or remainder interest).

"Act" means the "New Jersey Register of Historic Places Act", P.L. 1970, c.268, N.J.S.A. 13:1B-15.128 et seq., or subsequent amendments thereto.

"Area" means a district as defined in this section.

"Area of undertaking's potential impact" means that geographical area within which direct and indirect effects generated by the undertaking as defined in this section, could reasonably be expected to occur.

"Building(s)" means a structure created to shelter any form of human activity. Examples include a single construction such as a house, barn, courthouse, city hall, social hall, commercial building, library, factory, mill, train depot, fort, residence, hotel, theater, school, store, or church, or a small group of buildings consisting of a main building and subsidiary buildings that are functionally and historically related such as a courthouse and jail, house and barn, mansion and carriage house, church and rectory, or farm house and related out buildings, created to shelter any form of human activity.

"Certified Local Government" means a local government certified by the Department and the National Park Service to participate in Federal and State historic preservation programs pursuant to the National Historic Preservation Act of 1966 as amended.

"Chief elected local official" means the mayor, county executive or other titled chief elected administrative official who is the elected head of the local political jurisdiction in which the property is located.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Contributing property" means a building, site, structure, or object that adds to the historic architectural qualities, historic associations, or archaeological values for which a property is significant because:

1. It was present during the period of significance, and possesses historic integrity reflecting its character at that time or is capable of yielding important information about the period; or

2. It independently meets the New Jersey Register criteria set forth in N.J.A.C. 7:4-2.3.

"Cyclic maintenance" means that type of maintenance that is performed less frequently than annually and involves replacement or major mending of the fabric of a historic property, an example of which would be a complete re-roofing of a building.

"Damage" means partial physical harm or demolition of a historic property.

"Department" means the Department of Environmental Protection, Division of Parks and Forestry, Historic Preservation Office.

"District" means a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development. A district may also comprise individual elements that although linked by association or function were separated geographically during the period of significance, as a district of discontiguous archaeological sites or a canal system where man-made segments are interconnected by natural bodies of water. The concept of a discontiguous district applies only where visual continuity is not necessary to convey the historic interrelationship of a group of related resources. Examples include, but are not limited to, college campuses; central business districts; residential areas; commercial areas; industrial complexes; civic centers; rural villages; canal systems; collections of habitation and limited activity sites; irrigation systems; large estates, farms, ranches, or plantations; transportation networks; and large landscaped parks.

"Emergency" means a situation in which the condition of a property is so damaged by an event such as, but not limited to, a natural disaster, major fire, serious accident or structural collapse, that it constitutes an immediate, direct, demonstrable, and severe hazard to the public safety. The poor condition of a property caused by long term deterioration shall not be considered an emergency.

"Encroachment" means the adverse effect upon any district, site, building, structure or object included in the New Jersey Register resulting from the undertaking of a project by the State, a county, municipality or an agency or instrumentality thereof, as determined by application of the Criteria for Determining Whether an Undertaking Constitutes an Encroachment set forth in N.J.A.C. 7:4-7.4 and the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 68) and "Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings" (guidelines issued by the National Park Service, incorporated herein by reference) and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420) or from the Historic Preservation Office website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov) or subsequent amendments thereto adopted by the Secretary of the United States Department of the Interior and the National Park Service.

"Historic Preservation Commission" means the commission created by an ordinance adopted by the local governing body pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-107 through 112.

"Historic Preservation Office" means that office of the Department of Environmental Protection, and any successors in right, with the responsibility for maintaining the New Jersey Register of Historic Places and administering the State Historic Preservation Program.

"Historic property" means any district, site, building, structure or object significant in American history, architecture, archaeology, engineering and culture.

"Historic Sites Council" means the body within the Department of Environmental Protection established by P.L. 1967, c. 124, N.J.S.A. 13:1B-15.108 et seq., and amended by P.L. 1984, c. 562, N.J.S.A. 13:1B-15.111 et seq., for the purpose of recommending policies to the Commissioner for the following actions: the acquisition, development, use, improvement, and extension of historic sites (including archaeological sites); the development of a broad historic sites preservation program on a Statewide and local basis; the identification, authentication, protection, preservation, conservation, restoration, and management of all historic sites within the State; and the provision of advice on encroachments by the undertakings of State, county, or municipal governments or any agency or instrumentality thereof, on properties listed in the New Jersey Register.

"Housekeeping" means light cleaning performed at short term intervals.

"Local government" means a city, borough, town, municipality, township, village, county or other general purpose political subdivision of the State.

"Location map" means a map depicting the location of the resource referenced in the application delineated in relation to named local streets, at a scale that depicts the resource in its entirety and enough surrounding area to locate the resource on other map sources.

"Maintenance" means treatment that includes housekeeping, routine, and cyclic work scheduled to mitigate wear and deterioration of a historic property.

"Major revisions" means alteration of the boundaries of a property or important substantive changes to the nomination which could be expected to change the ultimate determination as to whether or not the property is listed in the New Jersey or National Registers.

"National Park Service" means that agency of the United States Department of the Interior to which the Secretary of the Interior has delegated the authority and responsibility for administering the National Register of Historic Places program, under the National Historic Preservation Act of 1966, as amended, 54 U.S.C. §§ 300101 et seq.

"National Register" means the National Register of Historic Places, which consists of districts, sites, buildings, structures and objects significant in American history, architecture, archaeology, engineering and culture, and which the Secretary of the United States Department of the Interior is authorized to expand and maintain pursuant to the National Historic Preservation Act of 1966, 54 U.S.C. §§ 300101 et seq.

"National Register Nomination Form" means the legal document and reference for historical, architectural and archaeological data upon which the registration of properties is founded. Said document is the National Park Service's Form NPS 10-900, with accompanying continuation sheets (where necessary) or Form NPS 10-306 with continuation sheets (where necessary) now in use by the National Park Service and as may be subsequently modified, changed or amended.

"New Jersey Register" means the New Jersey Register of Historic Places, consisting of areas, sites, buildings, structures and objects within the State determined to have significant historical, archaeological, architectural, or cultural value, which the Commissioner is authorized to expand and maintain pursuant to the Act.

"Nominate" means to propose that a district, site, building, structure or object be listed in the New Jersey and National Registers by preparing a nomination application with accompanying maps and photographs, which clearly documents the significance of the property and is technically and professionally correct and sufficient in accordance with the procedure set forth in N.J.A.C. 7:4-2.2.

"Noncontributing property" means a building, site, structure, or object that does not add to the historic architectural qualities, historic associations, or archaeological values for which a property is significant because:

1. It was not present during the period of significance or does not relate to the documented significance of the property;

2. Due to alterations, disturbances, additions, or other changes, it no longer possesses historic integrity reflecting its character at that time or is incapable of yielding important information about the period; or

3. It does not independently meet the New Jersey Register criteria set forth in N.J.A.C. 7:4-2.3.

"Object(s)" means a construction that is primarily artistic in nature or is relatively small in scale and simply constructed, as distinguished from a building or a structure. Although it may be movable, by nature or design, an object is associated with a specific setting or environment, such as statuary in a designed landscape. Objects should be located in a setting appropriate to their significant historic use, roles, or character. Examples include, but are not limited to, sculpture, monuments, mileposts, boundary markers, statuary, and fountains. (Objects relocated in a museum setting are generally considered inappropriate for listing in the New Jersey Register.)

"Preservation" means the act or process of applying measures to sustain the existing form, integrity and materials of an historic property. Work, including preliminary measures to protect and stabilize the property, generally focuses upon the ongoing maintenance and repair of historic materials and features rather than extensive replacement and new construction. New exterior additions are not within the scope of this treatment; however, the limited and sensitive upgrading of mechanical, electrical, and plumbing systems and other code-required work to make properties functional is appropriate within a preservation project.

"Project" means a planned undertaking.

"Reconstruction" means the act or process of depicting, by means of new construction, the form, features, and detailing of a non-surviving site, landscape, building, structure, or object for the purpose of replicating its appearance at a specific period of time and in its historic location.

"Rehabilitation" means the act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural values.

"Restoration" means the act or process of accurately depicting the form, features, and character of a property as it appeared at a particular period of time by means of the removal of features from other periods in its history and reconstruction of missing features from the restoration period. The limited and sensitive upgrading of mechanical, electrical, and plumbing systems and other code-required work to make properties functional is appropriate within a restoration project.

"Routine maintenance" means minor repairs such as in-kind replacement of a broken window pane or in-kind patching of a few roof shingles.

"Site(s)" means the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined or vanished, where the location itself maintains historic or archaeological value regardless of the value of any existing structure. Examples include, but are not limited to, habitation sites, funerary sites, rock shelters, village sites, hunting and fishing sites, ceremonial sites, petroglyphs, rock carvings, battlefields, ruins of historic buildings and structures, campsites, ruins of industrial works, sites of treaty signings, trails, shipwrecks, cemeteries, designed landscapes, and natural features, and such as springs, rock formations, and landscapes which have cultural significance.

"State Historic Preservation Officer" means the Commissioner of the Department of Environmental Protection, who is designated by the Governor to administer the State Historic Preservation Program, including the identification and nomination of eligible properties to the National Register. The Commissioner is also authorized by the Act to establish criteria for receiving and processing nominations and approval of areas, sites, buildings, structures and objects, both publicly and privately owned, for inclusion in the New Jersey Register.

"State Historic Preservation Plan" means the National Park Service required document that sets forth long-range goals of the State Historic Preservation Program and describes specific ways for the community to achieve those goals.

"State Historic Preservation Program" means the program established by the Department and approved by the Secretary of the United States Department of the Interior for the purposes of carrying out the provisions of the National Historic Preservation of 1966, as amended, and related laws and regulations.

"State Review Board" means the State Review Board for Historic Sites, a body whose members represent the professional fields of American history, architectural history, prehistoric and historic archaeology, and other professional disciplines appointed by the State Historic Preservation Officer as part of the State Historic Preservation Program for the purpose of reviewing and recommending to the State Historic Preservation Officer whether to approve New Jersey and National Register nominations based on whether or not they meet the criteria for evaluation in N.J.A.C. 7:4-2.3.

"Structure(s)" is a term used to distinguish from buildings those functional constructions made usually for purposes other than creating shelter. Examples include, but are not limited to, bridges, tunnels, gold dredges, firetowers, canals, turbines, dams, power plants, corncribs, silos, roadways, shot towers, windmills, grain elevators, kilns, mounds, cairns, palisade fortifications, earthworks, railroad grades, systems of roadways and paths, boats and ships, railroad locomotives and cars, telescopes, carousels, and aircraft.

"Undertaking" means an action by the State, a county, municipality, or an agency or instrumentality thereof, which has the potential to result in direct or indirect effects on any district, site, building, structure or object listed in the New Jersey Register. An action shall be considered to have an effect whenever any condition of the action causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to meet the criteria for evaluation (N.J.A.C. 7:4-2.3) for the New Jersey Register. For the purpose of determining effect, alteration of features of the property's location, setting or use may be considered relevant depending on a property's significant characteristics. An effect may be direct or indirect. Direct effects are caused by the undertaking and occur at the same place and time. Indirect effects include those caused by the undertaking that are farther removed in distance or later in time, but are still reasonably foreseeable. Such indirect effects may include changes in the pattern of land use, population density or growth rate that may affect the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to be listed in the New Jersey Register. Consistent with the above language, the following are examples of what shall be considered undertakings: acquisitions, sales, leases, transfers of deed, easements, an agreement or other form of permission allowing use of a registered property, cyclic maintenance, and alterations or relocation of a registered property. The following are examples of actions that shall not be considered as undertakings:

1. Changes in local zoning ordinances;

2. Issuance of building or demolition permits to private individuals or corporations;

3. Granting of zoning variances to private individuals or corporations; and

4. Housekeeping and routine maintenance.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• Added "Historic Preservation Office"; deleted "New Jersey and National Register Manual", "Office of New Jersey Heritage", "Protection", and "Stabilization"; and amended "Department", "District", "Encroachment", "Historic Sites Council", "New Jersey Register", Noncontributing property", "Preservation", "Reconstruction", "Rehabilitation", "Restoration", "State Historic Preservation Officer", "State Historic Preservation Plan", "Structure(s)".
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• Added a second sentence in the introductory paragraph; in "Encroachment", amended the N.J.A.C. reference and inserted a reference to the website address; rewrote "State Historic Preservation Plan".
• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• Added definition "Location map"; in paragraph 1 of definition "Noncontributing property", inserted "or does not relate to the documented significance of the property"; and in definition "State Review Board", inserted "the State Review Board for Historic Sites,".
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

Subchapter 2 REGISTRATION PROCEDURES AND CRITERIA

N.J. Admin. Code § 7:4-2.1 Integration of New Jersey and National Register of Historic Places Program

(a) The procedures for registration in New Jersey Register are integrated with the National Register of Historic Places Program administered by the Department and the National Park Service. The New Jersey and National Registers both use the same nomination criteria, nomination forms, State administrative agency (Historic Preservation Office), and State Review Board. Both require that the Commissioner sign the nomination; in the case of the National Register, as the State Historic Preservation Officer. This integrated process is designed to avoid duplication of steps since the two programs parallel and complement each other. The dual process ends after the Commissioner signs a historic property's nomination form, which action lists the historic property in the New Jersey Register. The property is then registered and protected by the Act. Once signed by the State Historic Preservation Officer, the historic property's nomination form is then forwarded to the National Park Service in care of the Keeper of the National Register for consideration for inclusion in the National Register.

(b) The State Historic Preservation Officer is responsible for identifying and nominating eligible properties to the New Jersey and National Registers and establishing Statewide priorities for preparation and submittal of nominations to the New Jersey and National Registers in accordance with the State Historic Preservation Plan.

(c) The New Jersey Register is administered and maintained by the Department.

(d) The Commissioner, as the State Historic Preservation Officer, or the Commissioner's designee, shall make the final determination for New Jersey registration. If favorable, the Commissioner shall sign the nomination, thereby placing the historic property on the New Jersey Register and simultaneously recommending the historic property for National Register designation by the National Park Service.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 New Jersey Register 2503(a), 29 New Jersey Register 4103(b).

N.J. Admin. Code § 7:4-2.2 Procedure for the nomination of properties for inclusion in the New Jersey and National Registers

(a) All applications for nomination to the New Jersey and National Registers shall be made under the supervision of the Department, on standard National Register Nomination Forms. Guidance in the completion of the forms is provided in the National Park Service publication "Guidelines for Completing National Register of Historic Places Forms" (National Register Bulleting Number 16) or subsequent amendments thereto and other guidelines issued by the Historic Preservation Office or the National Park Service for nominations to the National Register. The forms, publication, and guidelines are available from the Department at the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420.

(b) Applications for nomination to the New Jersey Register may be initiated by private individuals, any organization, or government agency.

(c) The procedure for the nomination of property for inclusion in the New Jersey and National Registers is as follows:

1. The applicant obtains a preliminary application and an individual building or district survey form from the Department.

2. The applicant submits the following to the Department for a preliminary determination by the Department whether the property is potentially eligible for listing in the New Jersey and National Registers under the criteria for evaluation set forth in N.J.A.C. 7:4-2.3:

i. The completed preliminary application and the individual or district survey form obtained under (c)1 above;

ii. Clear photographs that show the property in complete exterior and interior views. In the case of a district, the photographs shall show representative views of the district; and

iii. A location map;

3. Within 45 days of receiving a complete submittal for preliminary determination under (c)2 above, the Department shall:

i. Make a preliminary determination of the property's potential eligibility for the New Jersey and National Registers; and

ii. Notify the applicant in writing whether or not the Department determines that the property is potentially eligible for the New Jersey and National Registers.

(1) If the Department determines that the property potentially is eligible for the New Jersey and National Registers, the Department shall send a National Register Nomination Form to the applicant.

(2) If the Department determines that the property does not appear to be potentially eligible for the New Jersey and National Registers, the Department shall give the applicant a written explanation of the Department's preliminary determination that the property does not appear to meet the criteria for evaluation in N.J.A.C. 7:4-2.3. If the applicant resubmits a request for a preliminary determination, it shall be treated as a new preliminary submittal.

4. The applicant shall, as part of an adequately documented and technically and professionally correct and sufficient National Register Nomination Form, submit the following to the Department:

i. A complete list of all owners of the nominated property as of the date of the National Register Nomination Form's submission. The list of property owners shall be the list of private and public property owners (including right-of-way owners) named in official municipal tax records and maps and shall be notarized by the appropriate municipal official. If the property is not scheduled for consideration by the State Review Board under this subchapter within 90 days after the Department receives an adequately documented and technically and professionally correct and sufficient National Register Nomination Form, the Department may require that the applicant submit an updated list of property owners (notarized by the appropriate municipal official) which the applicant shall provide to the Department within 30 days of the issuance of the Department's written request; and

ii. A map that meets the standards specified in N.J.A.C. 7:4-8.9(a)1.

5. Within 60 days of receiving a completed National Register Nomination Form, the Department shall notify the applicant in writing as to:

i. Whether or not the National Register Nomination Form is adequately documented and technically and professionally correct and sufficient;

ii. Whether or not the property appears to meet the criteria for evaluation in N.J.A.C. 7:4-2.3; and

iii. If the Department determines that the National Register Nomination Form is adequately documented and technically and professionally correct and sufficient and that the property appears to meet the criteria for evaluation in N.J.A.C. 7:4-2.3, the Department shall schedule the nomination for consideration at the earliest possible State Review Board meeting, consistent with the Department's established priorities for processing nominations. These priorities shall be consistent with implementation of the State Historic Preservation Plan and shall be established by the Department in consultation with the State Review Board. The Department shall notify the applicant in writing of the property's position in accordance with the Department's priorities for processing nominations under the State Historic Preservation Plan and of the date the applicant can expect the nomination of the property to be considered by the State Review Board under this subchapter; or

iv. If the Department determines that the National Register Nomination Form is not adequately documented and technically and professionally correct and sufficient or that the property does not appear to meet the criteria for evaluation in N.J.A.C. 7:4-2.3, the Department shall provide the applicant with a written explanation of the reasons for that determination.

6. If the Department determines that the National Register Nomination Form is adequately documented and technically and professionally correct and sufficient, but that the property does not appear to meet the criteria for evaluation in N.J.A.C. 7:4-2.3, the Department need not process the nomination further unless the Department receives a written request to do so from the Keeper of the National Register under 36 CFR Part 60, Section 60.12 referenced in N.J.A.C. 7:4-2.2(c)21 below, in which case the Department shall proceed with processing the nomination for the National Register but shall not be required to process the nomination for the New Jersey Register.

When a National Register Nomination Form for a property within the jurisdiction of a Certified Local Government is received by the Department, the Department shall:

i. Forward a copy of the nomination to the Certified Local Government's historic preservation commission for the commission's review and comment;

ii. Within 30 days of its receipt of the nomination, forward to the Certified Local Government's historic preservation commission a written determination on whether or not the nomination is adequately documented and technically and professionally correct and sufficient and whether the nominated property appears to meet the criteria for evaluation under N.J.A.C. 7:4-2.3;

iii. Allow the Certified Local Government 60 days from the date of issuance of the notice of adequate documentation and eligibility for the Chief Elected Local Official of the Certified Local Government to transmit to the Department a report by the historic preservation commission as to whether or not in its opinion the nominated property meets the criteria for evaluation in N.J.A.C. 7:4-2.3 and the recommendation of the chief elected local official;

iv. If the report by the Certified Local Government's historic preservation commission and the recommendations of its chief elected local official are not received by the Department within 60 days as provided in (c)8ii above, the Department shall proceed with processing the nomination pursuant to this chapter; and

v. If both the Certified Local Government's historic preservation commission and its chief elected local official recommend under (c)8ii above that a property not be listed in the National Register, the Department shall not proceed with processing the nomination for the National Register pursuant to this chapter unless, within 30 days of the receipt of the recommendation by the Department, the State Historic Preservation Officer receives a written request from any citizen or organization to proceed with the nomination. The report by the Certified Local Government's historic preservation commission and the recommendations of its chief elected local official shall be included by the Department with any nomination processed by the Department under this chapter and submitted by the State Historic Preservation Officer to the Keeper of the National Register.

8. As part of the nomination process, the Department shall notify the preparer and the owner(s) of the nominated property or the owner(s) of property within a nominated historic district in writing of the Department's intent to bring the nomination before the State Review Board on a specific date, time and place. The Department shall be responsible for notifying only those property owners names in the National Register Nomination Form in accordance with (c)4 above. Where more than one owner is named, each separate owner shall be notified.

i. The Department shall send the written notification at least 60 but not more than 75 days before the State Review Board meeting during which the nomination is scheduled to be considered. The property owner(s) shall be notified via certified mail. In addition to informing the applicant and owner(s) that the property is being considered for nomination to the New Jersey Register, the notice shall solicit written comments on the significance of the property and whether or not it meets the criteria for evaluation set forth in N.J.A.C. 7:4-2.3, inform the owners what registration of the property will mean to the owner, and explain the benefits and responsibilities of property registration. The property owner(s) shall have at least 60 days but not more than 75 days from the date of issuance of written notification to submit written comments to the Department and to concur in or object to the nomination of such property.

ii. For a nomination with more than 50 property owners, the Department may publish a public notice to property owners concerning the Department's intent to nominate instead of individually notifying all property owners. Such public notice shall be published at least 60 days but not more than 75 days before the State Review Board meeting during which the nomination is scheduled to be considered. Such public notice must be published in one or more local newspapers of general circulation in the area of the nomination.

9. At least 60 but not more than 75 days before the State Review Board meeting during which the nomination is scheduled to be considered, the Department shall send, via certified mail, to the applicable chief elected local official of the county and municipality in which the property is located written notice of the Department's intent to bring the nomination before the State Review Board on a specific date, time and place. Notifications of a proposed district shall include a map showing the district boundaries. In addition to informing the chief elected local official that the property is being considered for nomination to the New Jersey Register, the notice shall solicit written comments on the significance of the property and whether or not it meets the criteria for evaluation in N.J.A.C. 7:4-2.3. The chief elected local official shall have 60 but not more than 75 days from the date of issuance of written notification to submit written comments on the nomination to the Department.

10. The complete National Register Nomination Form shall be on file with the Department during the comment period in (c)8 and 9 above and a copy shall be made available by mail when requested by the public or made available at a location to which all affected property owners have reasonable access, such as a local library, municipal building, courthouse, or other public place so that written comments regarding the nomination can be prepared.

11. In the case of a nomination of an historic district including 50 or more property owners, the Department shall conduct a public meeting in the municipality in which the property is located prior to consideration of the application by the State Review Board. In the event of an archaeological nomination, the public meeting may be waived by the Department. The Department shall publish public notice of the meeting to property owners in accordance with provisions of (c)8ii above. The notification shall provide the following: a description of the proposed historic district, the benefits and responsibilities of historic district registration, the place that the nomination document can be examined prior to the meeting, and the date, time and place that the meeting will be held. Alternative methods of notification for the meeting such as publication in the official newspaper of the municipality, or in a newspaper circulating in the municipality may be used when the number of property owners in a proposed historic district exceeds 50.

12. Upon notification under (c)8 above, any owner or owners of a private property who objects to the nomination to the National Register shall submit to the Department a notarized statement certifying that the objector is the sole or partial owner of the private property and objects to the nomination. Upon receipt of notarized objections respecting a district or single private property with multiple owners, the Department shall ascertain how many owners have objected. If an owner whose name did not appear on the ownership list submits a written notarized statement from the municipality that the party is the sole or partial owner of a nominated private property, such owner shall be counted by the Department in determining how many owners have objected. Each owner of private property in a district shall be considered only once regardless of how many properties or what part of one property that party owns and regardless of whether the property contributes to the significance of district. Owner objections shall be considered by the State Historic Preservation Officer only with regard to submission of the nomination to the Keeper of the National Register of Historic Places.

13. Completed National Register Nomination Forms, Department recommendations, and public comments concerning the significance of a property and its eligibility for the New Jersey and National Registers shall be submitted by the Department to the State Review Board. The State Review Board shall review the nomination forms and comments concerning the property's significance and eligibility for the New Jersey Register. The State Review Board shall evaluate whether or not the property meets the criteria for evaluation set forth in N.J.A.C. 7:4-2.3 and make a recommendation to the State Historic Preservation Officer to approve or disapprove the nomination. The State Review Board may request that the applicant submit additional information before making a recommendation to the State Historic Preservation Officer. If a nomination is not recommended for approval by the State Review Board, the Board shall explain at the meeting the reasons for its determination that the property does not satisfy the criteria for evaluation set forth in N.J.A.C. 7:4-2.3. The Board's explanation shall be made a part of the minutes of the meeting.

14. Nominations approved by the State Review Board, along with any comments received, shall be reviewed by the State Historic Preservation Officer. If the State Historic Preservation Officer determines that a nomination is adequately documented and technically, professionally, and procedurally correct and sufficient and in conformance with the criteria for evaluation set forth in N.J.A.C. 7:4-2.3, the State Historic Preservation Officer shall, within 90 days of the State Review Board meeting, sign the National Register Nomination Form and thereby place the property on the New Jersey Register and simultaneously recommend the nomination to the Keeper of the National Register of Historic Places, National Park Service, United States Department of the Interior, Washington, D.C. 20240. All comments received by the Department and notarized statements of objection to listing received by the Department shall be submitted to the National Park Service along with the nomination. Historic properties placed on the New Jersey Register shall remain on the New Jersey Register regardless of the response of the National Park Service to the nomination to the National Register. The State Historic Preservation Officer's signature certifies that:

i. All procedural requirements set forth in this section have been met;

ii. The National Register Nomination Form is adequately documented;

iii. The National Register Nomination Form is technically and professionally correct and sufficient; and

iv. In the opinion of the State Historic Preservation Officer, the property meets the criteria for evaluation set forth in N.J.A.C. 7:4-2.3.

15. If the State Historic Preservation Officer determines that the nominated property does not meet the criteria for evaluation set forth in N.J.A.C. 7:4-2.3, the State Historic Preservation Officer shall, within 45 days of the State Review Board meeting, advise the applicant in writing of the reasons for the determination. In the event that the State Historic Preservation Officer determines that the nominated property does not meet the criteria for evaluation, the State Historic Preservation Officer need not sign the National Register Nomination Form.

16. If the State Historic Preservation Officer and the State Review Board disagree on whether a property meets the criteria for evaluation set forth in N.J.A.C. 7:4-2.3, the State Historic Preservation Officer, if he or she chooses, may submit the nomination, with an opinion concerning whether or not the property meets the criteria for evaluation and the opinion of the State Review Board, to the Keeper of the National Register for a final decision on the listing of the property in the National Register. The State Historic Preservation Officer shall submit such disputed nominations to the Keeper within 45 days after the recommendation by the State Review Board if so requested by the State Review Board, the chief elected official of the municipality in which the property is located, or by the Keeper of the National Register pursuant to federal rules for appeals under the National Register Program set forth in 36 CFR Part 60, Section 60.12 or subsequent amendments thereto.

17. If the owner of a nominated private property or the majority of such owners of a nominated historic district or single property with multiple owners has objected to the nomination to the National Register by notarized statements before the State Historic Preservation Officer submits the nomination to the Keeper, the State Historic Preservation Officer shall sign the National Register Nomination Form, but shall submit the nomination to the Keeper only for a determination of whether the property or historic district is eligible for the National Register pursuant to the federal rules for the National Register Program set forth in 36 CFR Part 60, section 60.6(n) and (s) or subsequent amendments thereto.

Nominations will be included in the National Register within 45 days of receipt by the Keeper of a completed National Register Nomination Form from the State Historic Preservation Officer unless:

i. The Keeper returns the nomination to the State Historic Preservation Officer because the National Register Nomination Form is not adequately documented and technically and professionally correct and sufficient;

ii. The Keeper returns the nomination to the State Historic Preservation Officer because the Keeper has determined that the nominated property or historic district does not meet the criteria for listing in the National Register set forth in 36 CFR Part 60, section 60.4 or subsequent amendments thereto;

iii. An appeal is filed with the Keeper as provided in (c)22 below; or

iv. The owner of the nominated private property or the majority of the owners of property in a nominated historic district or single property with multiple owners objects by notarized statements received by the Keeper before the property or historic area is listed on the National Register.

19. When a nomination is returned to the State Historic Preservation Officer as provided in (c)18i and ii above, the State Historic Preservation Officer shall notify the applicant that the nomination has been returned. The notification shall include an explanation of the reasons for the return of the nomination. Upon receipt by the State Historic Preservation Officer of sufficient additional information from the applicant addressing the reasons for the return of the nomination, the State Historic Preservation Officer shall resubmit the nomination to the Keeper.

20. Any person or organization which supports or opposes the nomination of a property by the State Historic Preservation Officer for listing in the National Register may, during the review of the nomination by the National Park Service, petition the Keeper to accept or reject a nomination pursuant to the federal rules for appeals under the National Register Program, 36 CFR Part 60, Section 60.6(t) or subsequent amendments thereto. The petitioner must state the grounds of the petition and request in writing that the Keeper substantively review the nomination. Such petitions received by the Keeper prior to the listing of the property in the National Register or a determination of its eligibility where the private owners object to listing will be considered by the Keeper and the nomination will be substantively reviewed. Decisions by the Keeper on such petitions shall not affect a property's listing in the New Jersey Register.

21. If the Department determines not to nominate a property for inclusion in the National Register or the State Historic Preservation Officer does not nominate a property recommended by the State Review Board for inclusion in the National Register, any person or local government may appeal to the Keeper the failure or refusal of the State Historic Preservation Officer to nominate a property to the National Register that the person or local government considers to meet the criteria for listing in the National Register set forth in 36 C.F.R. 60.4 or subsequent amendments thereto. Such appeals shall be made in accordance with Federal rules for appeals under the National Register Program (36 C.F.R. 60.12) or subsequent amendments thereto. Regardless of the decision by the Keeper, the State Historic Preservation Officer is not obligated to place the property on the New Jersey Register.

22. If subsequent to nomination of a property for listing in the New Jersey Register and National Registers, major revisions are made to the nomination or a property previously rejected by the Department or Keeper is renominated, the State Historic Preservation Officer shall notify the affected property owner(s) and the chief elected local official of the county and municipality in which the property is located of the revisions or renomination in the same manner as the original notification for the nomination under (c)8 and 9 above. In the case of major revisions, the Department may resubmit the nomination to the State Review Board or treat it as a new nomination to be processed in accordance with this section. Comments received and notarized statements of objection shall be forwarded to the Keeper along with the revisions or renomination. The State Historic Preservation Officer shall also certify by the resubmittal that the affected property owner(s) and the chief elected local officials have been renotified.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• Substituted "60 days" for "30 days" preceding "but not more than 75 days" throughout; in (c), inserted "via certified mail" in the third sentence of 9 and the first sentence of 10.
• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• Rewrote (c).
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

N.J. Admin. Code § 7:4-2.3 Criteria for evaluation of a property nominated for listing in the New Jersey Register

(a) The criteria for evaluation listed below shall be used by the Department, State Review Board, and State Historic Preservation Officer to determine the eligibility of a property for listing in the New Jersey Register. The criteria for evaluation are also used by the National Park Service for determining eligibility of properties for the National Register (36 C.F.R. 60.4) or subsequent amendments thereto. These criteria are worded to apply to a wide diversity of properties. The criteria for evaluation are listed by letter as published in the Federal rules and as commonly utilized.

1. Criteria for Evaluation: The quality of significance in American history, architecture, archaeology, engineering and culture is present in districts, sites, buildings, structures and objects that possess integrity of location, design, setting, materials, workmanship, feeling and association and:

i. (Criterion A) That are associated with events that have made a significant contribution to the broad patterns of our history; or

ii. (Criterion B) That are associated with the lives of persons significant in our past; or

iii. (Criterion C) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

iv. (Criterion D) That have yielded, or may be likely to yield, information important in prehistory or history.

2. Criteria considerations: Ordinarily cemeteries, birthplaces, graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance within the past 50 years are generally not considered eligible for the New Jersey Register. However, such properties may qualify if they are integral parts of areas that do meet the criteria or if they fall within the following categories:

i. A religious property deriving primary significance from architectural or artistic distinction or historic importance;

ii. A building or structure removed from its original location but which is significant primarily for architectural value, or which is the surviving structure most importantly associated with an historic person or event;

iii. A birthplace or grave of a historical figure of outstanding importance if there is no other appropriate site or building directly associated with his or her productive life;

iv. A cemetery which derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events;

v. A reconstructed building when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan, and when no other building or structure with the same association has survived;

vi. A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own historical significance; or

vii. A property achieving significance within the past 50 years if it is of exceptional importance.

(b) The criteria for evaluation set forth in (a) above shall be applied in accordance with the guidelines issued by the National Park Service from time to time in the following or similar documents: "How to Apply the National Register Criteria for Evaluation" (National Register Bulletin No. 15), and "Guidelines for Completing National Register of Historic Places Forms" (National Register Bulletin Number 16) or subsequent amendments thereto, incorporated herein by reference and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420 or from the website (www.state.nj.us/dep/hpo) or the National Park Service website (www.nps.gov).

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• Inserted new (a)2iii; recodified former (a)2iii through vi as (a)2iv through vii; in (b), deleted reference to New Jersey and National Register Manual, inserted reference to Bulletin No. 15, and amended Office reference.
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• In (b), added references to the website address.
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

N.J. Admin. Code § 7:4-2.4 Notification of registration and National Park Service determinations of eligibility

(a) Upon approval by the State Historic Preservation Officer of a property for listing in the New Jersey Register, all property owners named in the National Register Nomination Form in accordance with N.J.A.C. 7:4-2.2(c)4 shall receive from the Department written notification of the registration including the date of approval. Notification shall also be sent to the chief elected local official of the county and municipality in which the property is located and, if the property is located within the jurisdiction of a Certified Local Government, to the Historic Preservation Commission. Alternative methods of notification, such as publication in the official newspaper of the municipality, or in a newspaper circulating in the municipality, may be used when the number of property owners in a proposed historic area exceeds 50. Notification of all registrations in counties under the jurisdiction of the Pinelands Commission shall also be sent to the Pinelands Commission.

(b) Upon approval by the Keeper of a property for listing in the National Register, the State Historic Preservation Officer shall send written notification of the registration to the property owners and the chief elected local official of the county and the municipality in which the property is located and, if the property is located within the jurisdiction of a Certified Local Government, to the Historic Preservation Commission. Alternative methods of notification, such as publication in the official newspaper of the municipality, or in a newspaper circulating in the municipality, may be used when the number of property owners in a proposed historic area exceeds 50.

(c) In the case of nominations where the owner of private property or the majority of such owners for an area or a single property with multiple owners has objected to listing in the National Register and the Keeper has determined the property or area to be eligible for the National Register, the State Historic Preservation Officer shall send written notification of the determination of eligibility to the property owners and the chief elected local official of the county and the municipality in which the property is located and, if the property is located within the jurisdiction of a Certified Local Government, to the Historic Preservation Commission. Alternative methods of notification, such as publication in the official newspaper of the municipality, or in a newspaper circulating in the municipality, may be used when the number of property owners in a proposed historic area exceeds 50.

N.J. Admin. Code § 7:4-2.5 Listed property file

Documentation of properties approved for listing in the New Jersey Register shall be on file and, subject to the provisions of N.J.A.C. 7:4-2.7, shall be available for public inspection at the Department.

N.J. Admin. Code § 7:4-2.6 Distribution of New Jersey Register and National Register

The Department shall maintain an updated list of sites on the New Jersey Register and National Register and distribute a copy of the New Jersey Register and National Register to the clerk of each county and municipality and to all New Jersey State Government agencies, instrumentalities, or entities upon request.

History

• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 New Jersey Register 3161(a), 35 New Jersey Register 1410(a).
• Rewrote the section.

N.J. Admin. Code § 7:4-2.7 Disclosure of nomination or registration of a historic property

The State Historic Preservation Officer need not make available to any person or entity except a Federal or State agency planning a project, the property owner, the chief elected local official of the county or municipality in which the property or district is located and the local Historic Preservation Commission for Certified Local Governments of the municipality in which the property is located, specific information relating to the location of properties proposed to be registered, or already registered in the New Jersey or National Registers, if the State Historic Preservation Officer determines that the disclosure of specific information would create a risk of destruction or harm to such properties.

Subchapter 3 BOUNDARY REDELINEATION AND RELOCATION OF PROPERTIES LISTED IN THE NEW JERSEY REGISTER

N.J. Admin. Code § 7:4-3.1 Redelineation of the boundary of property listed in the New Jersey Register

(a) The boundary of a property listed in the New Jersey Register may be redelineated only if:

1. Property that meets the criteria for evaluation in N.J.A.C. 7:4-2.3 was not included in the registered property or property that does not meet the criteria for evaluation in N.J.A.C. 7:4-2.3 was included in the registered property as the result of professional error in the original nomination of the registered property for listing in the New Jersey Register;

2. Property comprising part of registered property no longer meets the criteria for evaluation in N.J.A.C. 7:4-2.3 because the integrity of the qualities that caused the property to be listed in the New Jersey Register has been lost;

3. The property possesses additional, previously unrecognized significance in American history, architecture, archaeology, engineering or culture which causes the property to meet the criteria for evaluation in N.J.A.C. 7:4-2.3;

4. Additional research documents that a larger or smaller area of the registered property should be listed; or

5. Original delineation is inadequate to determine boundary limits.

(b) Except for redelineations under (a)5 above, the redelineation of the boundary of property listed in the New Jersey Register shall be considered a new nomination of a property to the New Jersey Register. A new National Register Nomination Form shall be prepared and submitted to the Department and processed by the Department in accordance with the procedure for the nomination of properties for inclusion in the New Jersey and National Registers set forth in N.J.A.C. 7:4-2.2. Any proposal to alter a boundary shall be documented in detail, including photographs of the historic resources located between the existing boundary and the proposed boundary. In the case of a proposed enlargement of the boundary of a registered property, only those property owners in the new area proposed to be included as part of a registered property shall be notified and counted in determining whether a majority of private property owners object to National Register listing as provided in N.J.A.C. 7:4-2.2(c)12. In the case of a proposed diminution of a boundary of a registered property, all owners of the registered property shall be notified and counted in determining whether a majority of private property owners object to the removal of part of a registered property from the National Register as provided in N.J.A.C. 7:4-2.2(c)12. If the State Historic Preservation Officer signs the National Register Nomination Form in accordance with N.J.A.C. 7:4-2.2(c)14, the revised boundaries of the registered property shall thereby be listed in the New Jersey Register and simultaneously recommended to the Keeper of the National Register. If the National Register Nomination Form is not signed by the State Historic Preservation Officer, the boundaries of the registered property shall not be changed.

(c) For redelineations under (a)5 above, an attachment to the National Register Nomination Form shall be prepared and submitted to the Department. The submission shall include a verbal boundary description, maps, and boundary justification. The Department shall process the redelineation in accordance with N.J.A.C. 7:4-2.2.

History

• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

N.J. Admin. Code § 7:4-3.2 Relocation of properties listed in the New Jersey Register

(a) The Department encourages the relocation of properties on the New Jersey Register only when relocation is the only feasible means for preservation of the registered property. When a registered property is relocated every effort should be made to reestablish its historic orientation, immediate setting, and general environment.

(b) If the State, a county, municipality or any agency or instrumentality thereof proposes to relocate a property listed in the New Jersey Register, the State, county, municipality or agency or instrumentality thereof shall submit an application to the Department for project authorization for projects encroaching upon property listed in the New Jersey Register. The application shall be prepared, submitted and reviewed in accordance with the review procedures for projects encroaching upon property listed in the New Jersey Register set forth in N.J.A.C. 7:4-7.

(c) In order for a property listed in the New Jersey Register to be relocated and remain listed in the New Jersey Register during and after the relocation, the applicant shall submit documentation to the Department and obtain the approval thereof by the State Historic Preservation Officer prior to the relocation. The documentation shall set forth in detail:

1. The reasons for the relocation;

2. The effect of the relocation on the registered property's historical integrity which causes the property to meet the criteria for evaluation in N.J.A.C. 7:4-2.3;

3. The description of the new setting and general environment of the proposed site, including evidence that:

i. The proposed site does not possess historical or archaeological significance that would be adversely affected by the proposed relocation; and

ii. The proposed site will, to the maximum extent possible, contribute to reestablishing the registered property's previous historic orientation, immediate setting, and general environment; and

4. Photographs showing the proposed location.

(d) Documentation submitted to the Department under (c) above shall be processed by the Department in accordance with the procedure for the nomination of properties for inclusion in the New Jersey and National Registers set forth in N.J.A.C. 7:4-2.2.

(e) If the State Historic Preservation Officer approves continued listing of the property despite its relocation, the property shall remain in the New Jersey Register during and after the relocation unless the historic integrity which causes the property to meet the criteria for evaluation in N.J.A.C. 7:4-2.3 is in some unforeseen manner destroyed during or as a result of the relocation. Within 90 days after the registered property has been relocated, an applicant shall submit to the Department:

1. A letter notifying the State Historic Preservation Officer of the date that the registered property was relocated;

Photographs of the registered property on its new site;

3. A revised map of the new site including a United States Geological Survey map; and

4. The acreage and a verbal boundary description of the new site.

(f) The State Historic Preservation Officer shall respond to a complete and properly documented submittal under (e) above within 45 days of receipt with a final determination on whether the relocation has destroyed the historic integrity of the registered property which caused the property to meet the criteria for evaluation in N.J.A.C. 7:4-2.3. If the State Historic Preservation Officer makes such a determination, the property shall be deleted from the New Jersey Register as of the date of the relocation of the property. In cases of properties removed from the New Jersey Register, if the applicant has neglected to obtain prior approval for the move or has evidence that previously unrecognized significance exists, or has accrued, the applicant may submit a new National Register Nomination Form for the property.

(g) If a registered property is relocated without first obtaining approval for continued listing from the State Historic Preservation Officer as provided in (e) above, the property shall, as of the date of relocation, be deleted from the New Jersey Register. However, a property which is subject to the encroachment review process set forth in N.J.A.C. 7:4-7 shall not be automatically deleted from the New Jersey Register until said review process is completed. If a registered property is relocated without first obtaining the approval required under (b) or (e) above, it is the responsibility of the property owner or applicant to notify the Department.

(h) If a property is deleted from the New Jersey Register under (g) above, in order for the property to be reentered in the New Jersey Register, a new National Register Nomination Form shall be prepared and submitted to the Department and processed by the Department in accordance with the procedure for nomination of properties for inclusion in the New Jersey and National Registers set forth in N.J.A.C. 7:4-2.2. In addition to the information required as part of a complete National Register Nomination Form under N.J.A.C. 7:4-2.2, the nomination form shall set forth in detail:

1. The reasons for the relocation;

2. The effect of the relocation on the property's historical integrity which caused the property to meet the criteria for evaluation in N.J.A.C. 7:4-2.3;

3. The new setting and general environment, including evidence that the new site does not possess historical or archaeological significance that would be affected by intrusion of the property;

4. Photographs showing the new site;

5. A United States Geological Survey Map showing the property at the new site; and

6. The acreage and a verbal boundary description of the new site.

N.J. Admin. Code § 7:4-3.3 Properties relocated in accordance with the recommendations of the Advisory Council on Historic Preservation

Properties relocated in accordance with the recommendations of the Advisory Council on Historic Preservation under 36 C.F.R. 800, are exempt from N.J.A.C. 7:4-3.2(c) through (h). An applicant shall notify the Department of the new site after the property has been relocated. The notice shall include the information and documentation required in N.J.A.C. 7:4-3.2(e).

History

• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 New Jersey Register 3161(a), 35 New Jersey Register 1410(a).

N.J. Admin. Code § 7:4-3.4 Relocation by the State, a county or municipality of property listed in the New Jersey Register

(a) When the relocation by the State, a county, municipality or agency or instrumentality thereof of property listed in the New Jersey Register is authorized by the Commissioner in accordance with the procedures in N.J.A.C. 7:4-7 for project authorization of projects encroaching upon property listed in the New Jersey Register, the authorization exempts the registered property from N.J.A.C. 7:4-3.2(c) through (h).

(b) When the relocation by the State, a county, municipality or agency or instrumentality thereof of property listed in the New Jersey Register is authorized by the Commissioner in accordance with the provisions in N.J.A.C. 7:4-7 for project authorization for projects encroaching upon property listed in the New Jersey Register, the authorization does not exempt the registered property from N.J.A.C. 7:4-3.2(c) through (h) for the purpose of the property remaining in the National Register. In order for the property to remain in the National Register, an applicant shall comply with the procedures and obtain the determination required under N.J.A.C. 7:4-3.2(c) through (h).

(c) Under (a) and (b) above, an applicant shall notify the Department of the new site after the relocation. The notice shall include the information and documentation required under N.J.A.C. 7:4-3.2(e).

Subchapter 4 REMOVAL OF PROPERTY FROM THE NEW JERSEY REGISTER

N.J. Admin. Code § 7:4-4.1 Grounds for removal of property from the New Jersey Register

(a) A property listed in the New Jersey Register may be removed from the New Jersey Register only when the State Historic Preservation Officer determines that a petition for removal filed under (d) below establishes any of the following grounds:

1. The property has ceased to meet the criteria for evaluation in N.J.A.C. 7:4-2.3 because the qualities which caused the property to be listed in the New Jersey Register have been lost or destroyed, or such qualities were lost subsequent to nomination and prior to listing in the New Jersey Register;

2. Additional information establishes that the property does not meet the criteria for evaluation in N.J.A.C. 7:4-2.3;

3. Any error in professional judgment occurred in determining that the property meets the criteria for evaluation in N.J.A.C. 7:4-2.3; or

4. Prejudicial procedural error occurred in the nomination or listing process.

(b) Property removed from the New Jersey Register on the grounds set forth in (a)4 above shall be reconsidered for listing by the State Historic Preservation Officer after correction of the procedural error or errors by the applicant or Department, as appropriate. The reconsideration shall be conducted in accordance with N.J.A.C. 7:4-2.2, 2.3 and 2.5. Any property removed from the New Jersey Register for procedural deficiencies in the nomination and/or listing process shall automatically be considered eligible for inclusion in the New Jersey Register.

(c) Property listed in the New Jersey Register five years prior to August 17, 1992 shall only be removed from the New Jersey Register on the grounds set forth in (a)1 above.

(d) Any person, organization or governmental agency may petition the Department in writing for removal of a property from the New Jersey Register. The petition shall fully document, describe and explain the reasons why the petitioner believes that the property should be removed from the New Jersey Register for any of the grounds set forth in (a) above. If the petition is based on the grounds set forth in (a)1 above, the petition shall include:

1. A copy of the original nomination indicating by number the significant elements that have lost integrity;

2. A narrative description and analysis clearly demonstrating loss of integrity and the reasons for that loss such as vandalism, demolition, destruction, relocation and alterations. In the case of a district, the description shall specifically identify properties affected by loss of integrity; and

Photographs showing existing conditions and keyed to a map and the nomination form.

(e) The State Historic Preservation Officer shall respond to the petitioner in writing within 45 days of receipt of the petition for removal of a property from the New Jersey Register. The response shall advise the petitioner of the State Historic Preservation Officer's views on the petition. A petitioner desiring to pursue his or her removal request shall notify the State Historic Preservation Officer in writing within 45 days of receipt of the written views on the petition. A property shall be considered for removal according to the nomination application procedure in N.J.A.C. 7:4-2.2 except that:

1. The procedures in N.J.A.C. 4-2.2(c)4, 14, 15 and 16 shall be completed in 15 days; and

2. The State Historic Preservation Officer shall forward the removal petition to the Keeper of the National Register within 15 days of the date of the meeting at which the State Review Board considered the petition.

Subchapter 5 CERTIFICATION OF ELIGIBILITY FOR LISTING IN THE NEW JERSEY REGISTER

N.J. Admin. Code § 7:4-5.1 Certification of eligibility for listing in the New Jersey Register

If the property for which a historic preservation grant is requested under the Garden State Preservation Trust Fund Act, N.J.S.A. 13:8C-1 et seq., is not listed on the New Jersey Register, the applicant shall, prior to submission of a historic preservation grant application under N.J.A.C. 15:34, obtain from the State Historic Preservation Officer a certification of eligibility stating that the property for which a grant is requested is eligible for listing in the New Jersey Register. An applicant for an historic preservation grant for property within a registered district which is not categorized on the National Register Nomination Form as either contributing or noncontributing to the character of the district shall apply to the Department for a certification of eligibility.

History

• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 New Jersey Register 3161(a), 35 New Jersey Register 1410(a).
• Amended the N.J.S.A. and N.J.A.C. references.

N.J. Admin. Code § 7:4-5.2 Criteria for issuance of a certification of eligibility

In determining whether to issue a certification of eligibility, the Department shall apply the criteria of evaluation set forth in N.J.A.C. 7:4-2.3.

N.J. Admin. Code § 7:4-5.3 Application for certification of eligibility

(a) To request a certification of eligibility for listing in the New Jersey Register, the applicant shall:

1. Obtain a preliminary application from the Department;

2. Submit the following to the Department for a determination by the State Historic Preservation Officer whether the property is eligible for listing in the New Jersey Register.

i. The completed preliminary application;

ii. Clear photographs that show the property in complete exterior and interior views; and

iii. A location map.

3. If a property within a district listed in the New Jersey Register is not described on the National Register Nomination Form as being contributing or noncontributing to the character of the district, the application shall describe on the individual survey form how the property contributes to the character of the district.

4. If, based on its review of information submitted under (a)2 above, the Department determines that a property may be eligible for listing in the New Jersey Register as part of a district, the Department shall provide the applicant with a district survey form. The applicant shall complete the district survey form and submit it to the Department with photographs that show representative views of the district.

(b) Within 45 days after receipt by the Department of a complete application for a certification of eligibility under (a) above, the State Historic Preservation Officer shall:

1. Determine whether the property is eligible for listing in the New Jersey Register under the Criteria for Evaluation set forth in N.J.A.C. 7:4-2.3; and

2. Notify the applicant in writing whether or not the State Historic Preservation Officer has determined that the property is eligible for listing in the New Jersey Register.

i. If the State Historic Preservation Officer has determined that the property is eligible for listing in the New Jersey Register, the State Historic Preservation Officer shall send a certification of eligibility, which shall specify how the property meets the criteria for eligibility set forth in N.J.A.C. 7:4-2.3 to the applicant.

ii. If the State Historic Preservation Officer has determined that the property is not eligible for listing in the New Jersey State Register, the State Historic Preservation Officer shall give the applicant a written explanation of the State Historic Preservation Officer's determination that the property does not meet the criteria for evaluation in N.J.A.C. 7:4-2.3.

(c) If the State Historic Preservation Officer has determined that the property is not eligible for listing in the New Jersey Register, the applicant may apply for nomination of the property for listing in the New Jersey and National Registers under N.J.A.C. 7:4-2.2. The State Historic Preservation Officer's determination on the application for certification of eligibility shall be submitted with the National Register Nomination Form.

History

• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• In the introductory paragraph of (a), substituted "request" for "apply for", and deleted "for an historic preservation grant" preceding "shall"; in (a)1 and (a)2i, substituted "application" for "questionnaire and individual survey form"; rewrote (a)2iii; and in (a)4, substituted "information" for "the preliminary questionnaire, individual survey form and photographs", and deleted "within 90 days of the Department's issuance of the form" preceding "and submit".

Subchapter 6 STATE FUNDS

N.J. Admin. Code § 7:4-6.1 Expenditure of State funds for historic preservation

(a) The Act requires that only properties on the New Jersey Register shall receive State funding for acquisition, preservation, restoration, and maintenance as historic properties.

(b) It is the responsibility of all State agencies considering funding a property for use as an historic place or site to apply for listing on the New Jersey Register as early as possible in their planning process. State agencies shall contact the Department for help and advice as to the eligibility of a property under their jurisdiction for listing in the New Jersey Register.

(c) Historic properties owned and maintained by the State of New Jersey, Department of Environmental Protection before November 30, 1970, are exempt from this subchapter.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 New Jersey Register 2503(a), 29 New Jersey Register 4103(b).

Subchapter 7 REVIEW PROCEDURES FOR PROJECTS ENCROACHING UPON NEW JERSEY REGISTER PROPERTIES

N.J. Admin. Code § 7:4-7.1 Application procedure for encroachment authorization

(a) During the earliest stage of planning for any undertaking and before taking any action that could result in a physical effect on a property listed in the New Jersey Register, the State, a county, municipality or an agency or instrumentality thereof shall:

1. Consult with the Historic Preservation Office for the purpose of defining the boundaries of the area of the undertaking's potential impact;

2. Consult the latest edition of the New Jersey Register at http://www.state.nj.us/dep/hpo/1identify/nrsr_lists.htm to determine if there are any registered properties within the area of the undertaking's potential impact; and

3. Contact the Historic Preservation Office and determine if other properties within the area of the undertaking's potential impact have been listed in the New Jersey Register since the most recently published list. Public projects or actions for which acquisition or construction contracts have been let prior to listing on the New Jersey Register shall not require review and approval.

(b) If there is no property on the New Jersey Register in the area of the undertaking's potential impact, the undertaking may commence without further review and approval by the Department pursuant to the Act and this chapter.

(c) If there is property on the New Jersey Register in the area of the undertaking's potential impact, the State, a county, municipality or an agency or instrumentality thereof shall submit an application to the Department for project authorization.

(d) The application shall be prepared by the State, county, municipality or agency or instrumentality thereof planning the undertaking or its authorized representative on forms available from the Department. The application shall be sufficient to completely describe the planned undertaking and shall include:

1. Maps;

2. Photographs;

Plans;

4. Specifications;

5. Proposed agreements;

6. A complete list of owners of registered properties that would be directly affected by the undertaking. The list of property owners shall be the list of private and public property owners (including right-of-way owners) named in official municipal tax records and maps as of the date of submission of the application and shall be certified by the appropriate municipal official;

7. A complete list of local historical societies and historic preservation commissions in the area of the undertaking's potential impact;

8. A list of all affected local government units, any agencies or instrumentalities thereof concerned with historic preservation, and any Statewide organization and local organization specifically concerned with historic preservation in the area of the undertaking's potential impact;

9. A copy of the historic preservation element from the county/municipal masterplan if applicable;

10. If demolition of all or a substantial portion of a property is proposed, the application shall include a structural assessment and an evaluation of whether the property could be reasonably repaired, to be prepared by an architect or engineer with demonstrated experience with historic properties consistent with criteria established in the Secretary of the Interior's Professional Qualifications Standards, 36 CFR 61, Appendix, incorporated herein by reference and related guidance as part of the larger Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation, incorporated herein by reference, as referenced in 36 CFR 61; and

11. An application for relocating property on the New Jersey Register shall also include the information and documentation required in N.J.A.C. 7:4-3.2(c).

(e) At the request of an applicant, the Historic Sites Council may grant the review of a project that has only been developed to a conceptual level in cases where the project involves substantial encroachment through new construction and/or demolition (stage 1) and subsequent compatible design of new construction (stage 2). The scope of work for the project shall be consistent in both phases and shall be distinguished solely by the level of detail/completeness to which it has been developed. Project phasing is appropriate in cases where it would not be prudent to expend funds on stage 2 work without stage 1 approval. Each application seeking such review shall contain the information specified at (d) above.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• In (d), inserted second and fourth sentences.
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• Rewrote (d).
• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• In (a)1 and (a)3, substituted "Historic Preservation Office" for "Department"; in (a)2, inserted "at http://www.state.nj.us/dep/hpo/1identify/nrsr_lists.htm"; rewrote (d); and added (e).

N.J. Admin. Code § 7:4-7.2 Review of an application for project authorization

(a) Within 30 days of receipt of an application for project authorization, the Department shall review the application for technical and professional completeness and sufficiency and shall notify the applicant in writing as to whether or not the application is complete and sufficient. If the application or material is not complete and sufficient, the Department shall notify the applicant in writing of what information is needed.

(b) Pursuant to N.J.S.A. 13:1B-15.131, the Department shall have 120 days to review an application for project authorization. The 120 day review period shall commence on the date that the Department receives an application that is technically and professionally complete and sufficient. In the event that the Department does not authorize, consent to, conditionally authorize or consent to, deny, or temporarily deny an application within the 120 day period, the application shall be deemed to have been approved. No waiver or extension of the 120 day period shall be allowed. This prohibition shall not apply in those cases in which the Commissioner issues a temporary denial based on a need for additional information. See N.J.A.C. 7:4-7.2(e)7 iii.

(c) Upon determination by the Department that an application for project authorization is technically and professionally complete and sufficient, the Department shall:

1. Conduct a review to determine if the undertaking for which the application is submitted constitutes an encroachment or will damage or destroy the historic property under the criteria set forth in N.J.A.C. 7:4-7.4 and the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 68) and "Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings" (guidelines issued by the National Park Service, incorporated herein by reference) and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420 or from website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov) or subsequent amendments thereto, adopted by the Secretary of the United States Department of the Interior and the National Park Service; and

2. Within 45 days after the Department's issuance of notice to the applicant that an application is technically and professionally complete and sufficient, notify the applicant in writing whether or not the undertaking constitutes an encroachment or will damage or destroy the historic property. The notification shall include an explanation of the reasons for the Department's determination. The Department shall send a copy of any notification that an undertaking does not constitute an encroachment or will not damage or destroy the historic property to local historical societies and historic preservation commissions, as listed by the applicant in the application for authorization, pursuant to N.J.A.C. 7:4-7.1(d).

(d) If the Department determines that the undertaking does not constitute an encroachment or will not damage or destroy the historic property, the applicant may proceed with the project upon receipt of the Department's written notice under (c)2 above.

(e) If the applicant is notified by the Department that an undertaking constitutes an encroachment or will damage or destroy the historic property, the following shall occur:

1. The applicant shall submit 12 original copies of the application for project authorization to the Department for transmittal to the members of the Historic Sites Council.

2. Within 15 days of receipt of a notice that the undertaking constitutes an encroachment, the applicant shall provide written notice to owners of registered properties (as listed by the applicant in the application for authorization, pursuant to N.J.A.C. 7:4-7.1(d)) that an application has been submitted to the Commissioner for authorization and has been determined to constitute an encroachment.

3. The written notice shall contain a statement that indicates that the entity receiving the notice or any person directly affected by the undertaking may request in writing, that the Commissioner ask the Historic Sites Council to conduct a special public meeting specifically on the encroachment application. If the Commissioner receives a written request for a special public meeting from such an entity or from at least five persons directly affected by the undertaking, the Commissioner may ask the Historic Sites Council to conduct a special public meeting within the 120-day review period. If the Commissioner does not receive a written request for a public meeting from such an entity or from at least five persons directly affected by the undertaking, the Commissioner may, on his or her own initiative, request the Historic Sites Council to conduct a special public meeting within the 120-day review period or determine that such a special public meeting is unnecessary. Preference shall be given to holding the special public meeting in the municipality wherein the area, site, building, structure or object included in the New Jersey Register of Historic Places that would be affected by the application is located, or in a municipality as close thereto as can reasonably be arranged.

4. The application for project authorization shall be scheduled to be reviewed by the Historic Sites Council at a regularly scheduled meeting or a special public meeting pursuant to (e)1 above. At least 21 days before the regularly scheduled or special meeting date, the Department shall determine the agenda for the Council meeting and consistent with the Open Public Meeting Act, N.J.S.A. 10:4-6 et seq. send written notification of the meeting to:

i. The applicant;

ii. The chief elected local official of the municipality in which the proposed undertaking would occur;

iii. Two major circulation newspapers, including a major circulation newspaper in the area of the municipality in which the proposed undertaking would occur;

iv. Local historical societies and historic preservation commissions, as listed by the applicant in the application for authorization pursuant to N.J.A.C. 7:4-7.1(d);

v. All affected local government units, any agencies or instrumentalities thereof concerned with historic preservation, and any recognized organization specifically concerned with historic preservation in the State and in the area of the undertaking's potential impact as listed by the applicant in the application for authorization pursuant to N.J.A.C. 7:4-7.1(d);

vi. Owners of registered properties that would be directly affected by the undertaking, as listed by the applicant in the application for project authorization, pursuant to N.J.A.C. 7:4-7.1(d). For an application where more than 25 owners would be directly affected by the undertaking, the Department may publish a public notice to property owners concerning the Council's meeting instead of individually notifying all property owners. Such public notice shall be published 21 days before the scheduled meeting date; and

vii. Interested parties who have advised the Department in writing of their interest in the application.

5. If an applicant wishes to withdraw an application for project authorization, the applicant shall notify the Department in writing of said withdrawal and shall also immediately notify all parties listed by the applicant in the application for project authorization pursuant to N.J.A.C. 7:4-7.1(d) and interested parties who have advised the Department in writing of their interest in the scheduling of a special public meeting on the application, pursuant to (e)3 above. If a withdrawal is within 48 hours of a regularly scheduled or special meeting of the Historic Sites Council and if it is not possible for all people to be notified of the withdrawal, then the Historic Sites Council, at its discretion, may accept public comment on the withdrawn application on the day for which the application was scheduled. Such comments may be considered if pertinent to a new application on the same encroachment.

6. The Historic Sites Council shall meet to review the application for project authorization and evaluate the encroachment using the criteria set forth in N.J.A.C. 7:4-7.4 and the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 68) and "Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings" (guidelines issued by the National Park Service, incorporated herein by reference) and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420 or from website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov) or subsequent amendments thereto, adopted by the Secretary of the United States Department of the Interior and the National Park Service. The Council shall also consider the following:

i. A draft recommendation prepared by Historic Preservation Office staff in the form of a resolution or other format as may be appropriate that evaluates the project against the standards identified in (e)6 above;

ii. The public benefit of the proposed undertaking;

iii. Whether or not feasible and prudent alternatives to the encroachment exist; and

iv. Whether or not sufficient measures could be taken to avoid, reduce or mitigate the encroachment.

7. The Historic Sites Council shall submit written recommendations to the Commissioner.

8. In addition to considering the recommendations of the Historic Sites Council, the Commissioner may direct the conduct of a public hearing on the application prior to granting or denying authorization of the encroachment.

9. Within the 120-day review period under (b) above, the Commissioner shall transmit to the applicant a written decision with specific reasons therefor which shall either:

i. Authorize or consent to the encroachment or project designed to the conceptual level, as described in the application;

ii. Authorize or consent to the encroachment with conditions. The conditions may include, but are not limited to, placement of a preservation covenant in the deed for the property in the event of the conveyance of any interest in the property; marketing of the historic property over a reasonable period of time; recordation of the historic property to the standards and approval of the Historic American Buildings Survey or Historic American Engineering Record (HABS/HAER) through photographs, drawings and written narrative; archaeological survey or data recovery; salvage of significant architectural features; and revisions to the architectural plans or other conditions that would enable the project to meet the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 68) and "Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings" (guidelines issued by the National Park Service, incorporated herein by reference) and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420 or from website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov) or subsequent amendments thereto, adopted by the Secretary of the United States Department of the Interior and the National Park Service, or otherwise avoid, reduce or mitigate the encroachment.

(1) The applicant shall respond to the conditions within 60 days of the issuance of the Commissioner's decision. If the applicant agrees in writing that all the conditions are acceptable and will be met, the undertaking may proceed. If the applicant does not respond within 60 days or does not agree with all the conditions, the Commissioner shall deny the application for project authorization. Prior to the undertaking, the applicant shall submit to the Department written and photographic documentation or revised final architectural plans and specifications to show how the conditions of the approval have been or will be satisfied. Upon completion of the undertaking, the applicant shall document to the satisfaction of the Department that the applicant has complied with all the conditions;

iii. Deny the application for project authorization temporarily based on such factors as need for additional information, exploration of additional alternatives for avoidance or mitigation of the encroachment, damage, destruction or other adverse effects. The applicant shall respond to the Department within 60 days from the date of issuance of a temporary denial. In the event that no response is received by the Department within 60 days, the Commissioner shall deny the application. If the applicant submits a complete response including all information requested by the Department, it shall be within the discretion of the Department as to refer additional information to the Historic Sites Council, and the Department shall make a final determination within 60 days after receipt of the response; or

iv. Deny the application for project authorization with specific reasons therefor.

10. If an authorized, or conditionally authorized, project is not undertaken within five years of the date of authorization, the authorization shall automatically expire.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• In (b), inserted last two sentences; in (c)1, amended sources of criteria to determine encroachment, damage or destruction; Inserted new (e)1, (e)2iii and (e)3; recodified former (e)1 as (e)2, (e)2v and vi as (e)2vi and vii, and former(e)3 through 5 as (e)4 through 7; in (e)3, inserted "Two major circulation newspapers, including"; in (e)4, amended sources of criteria to determine encroachment; in (e)7ii, amended sources of standards or guidelines; and in (e)7iii, inserted ", it shall be within... a final determination".
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• Inserted references to the website address throughout.
• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• Rewrote (e).
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

N.J. Admin. Code § 7:4-7.3 Emergency undertakings

(a) In the case of an emergency undertaking which needs to be implemented by the State, a county or municipality or an agency or instrumentality thereof, within 30 days of an emergency, the State, county or municipality or agency or instrumentality thereof, in lieu of the application procedure in N.J.A.C. 7:4-7.1, shall notify the Department by telephone and in writing as soon as possible. Said notification shall include: the name and address of the property listed in the New Jersey Register, a written description of the scope of the emergency undertaking, photographs documenting the condition of the registered property, a statement from an appropriate expert demonstrating how the condition of the property constitutes an immediate, direct, demonstrable and severe hazard to the safety of the public, and a statement as to how the undertaking will encroach upon the registered property. If demolition of all or a substantial portion of a property is proposed, the notification shall include a structural assessment and an evaluation of whether the property could be reasonably repaired, to be prepared by an architect or engineer with demonstrated experience with historic properties consistent with criteria established in the Secretary of the Interior's Professional Qualification Standards and related guidance as part of the larger Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation as referenced in 36 C.F.R. 61.

(b) The Department shall respond within seven calendar days after receipt by the Department of the complete notification as described in (a) above. If the Department determines that the condition of the property constitutes an immediate direct, demonstrable, and severe hazard to the safety of the public, Historic Sites Council review is not required and the Department shall respond in accordance with N.J.A.C. 7:4-7.2(e)5 but within seven calendar days after receipt by the Department of the complete notification as described in (a) above. Until the Department authorizes the emergency undertaking, the State, county or municipality or agency or instrumentality thereof conducting the emergency undertaking shall only take measures necessary to stabilize or isolate the affected property to prevent danger to the public. The Department may determine that the situation does not constitute an emergency and require that the applicant follow the application procedure in N.J.A.C. 7:4-7.2.

History

• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 New Jersey Register 3161(a), 35 New Jersey Register 1410(a).
• In (a), rewrote the third sentence.

N.J. Admin. Code § 7:4-7.4 Criteria for determining whether an undertaking constitutes an encroachment or will damage or destroy the historic property

(a) An undertaking will have an adverse effect and therefore constitute an encroachment when the effect of the undertaking on a property listed in the New Jersey Register may diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Encroachments include, but are not limited to:

1. Physical destruction, damage, or alteration of all or part of the registered property;

2. Isolation of the registered property from or alteration of the character of the property's setting when that character contributes to the property's qualification for the New Jersey Register;

3. Introduction of visual, audible, or atmospheric elements that are out of character with the registered property or alter its setting; and

4. Acquisition, transfer, sale, lease, easement on, or an agreement or other permission allowing use of a registered property.

(b) An undertaking that would otherwise be found to constitute an encroachment pursuant to (a) above may be considered by the Department as not being an encroachment when:

1. The registered property is of value only for its potential contribution to archaeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research, and such research is conducted in accordance with applicable professional standards and guidelines including the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (Federal Register, Volume 48, No. 190), effective Thursday, September 29, 1983, as updated and revised by the National Park Service (see http://www.nps.gov/history/local-law/arch_stnds_0.htm);

2. The undertaking is limited to the preservation, rehabilitation, restoration, or reconstruction of buildings and structures and is conducted in a manner that preserves the historical and architectural value of affected historic property through conformance with the Secretary of the Interior's Standards for the Treatment of Historic Properties (36 C.F.R. 68) and "Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings" (guidelines issued by the National Park Service, incorporated herein by reference) and available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420 or from website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov) or subsequent amendments thereto, adopted by the Secretary of the United States Department of the Interior and the National Park Service; or

3. The undertaking is limited to the acquisition, transfer, sale, lease, easement on, or an agreement or other permission allowing use of a registered property, and adequate restrictions or conditions are included to ensure preservation of the property's significant historic features.

History

• Amended by R.1997 d.373, effective 9/15/1997.
• See: 29 N.J.R. 2503(a), 29 N.J.R. 4103(b).
• In (b)2, inserted reference to preservation and reconstruction, deleted reference to stabilization and protection, and amended sources of standards.
• Amended by R.2003 d.110, effective 3/17/2003.
• See: 34 N.J.R. 3161(a), 35 N.J.R. 1410(a).
• Inserted references to the website address.
• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• In (b)1, inserted "including the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (Federal Register, Volume 48, No. 190), effective Thursday, September 29, 1983, as updated and revised by the National Park Service (see http://www.nps.gov/history/local-law/arch_stnds_0.htm)".
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

Subchapter 8 CONSULTATION WITH OTHER DEPARTMENT PROGRAMS AND OTHER NON-FEDERAL GOVERNMENTAL AGENCIES

N.J. Admin. Code § 7:4-8.1 Definitions

The following words and phrases, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. If there is a conflict with a definition at N.J.A.C. 7:4-1.3, the definition below will control:

"Impact" means the adverse effect upon any district, site, building, structure or object included in or eligible for inclusion in the New Jersey and National Registers of Historic Places resulting from the implementation of a project.

"Principal investigator" means the person in direct charge of the major archaeological survey tasks including background investigation; site predictive model development and development of a field strategy; field investigation and testing; data collection and analysis; reporting; and curation.

"Project" means any planned action, whether private or public, which has the potential to result in direct or indirect effects on any district, site, building, structure or object listed in or eligible for listing in the New Jersey and National Registers of Historic Places. A planned action shall be considered to have an effect whenever any aspect of the action causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to meet the criteria of evaluation for inclusion in the New Jersey and National Register at N.J.A.C. 7:4-2.3. For the purpose of determining effect, alteration of features of the property's location, setting or use may be considered relevant depending on a property's significant characteristics. Direct effects are caused by the project and occur at the same place and time. Indirect effects include those caused by the project that are farther removed in distance or later in time, but are still reasonably foreseeable. Such indirect effects may include changes in the pattern of land use, population density or growth rate that may affect the quality of the historical, architectural, archaeological, or cultural characteristics that qualified a historic property to be listed or eligible for listing in the New Jersey and National Registers of Historic Places.

"Smithsonian (SITS) numbers" means the three-part, unique Smithsonian Institution Trinomial System (SITS) number assigned by the New JerseyState Museum to archaeological sites identified in New Jersey. A Smithsonian (SITS) number can be obtained for a site by providing the New JerseyState Museum with a completed archaeological site registration form, available from the New Jersey State Museum, 205 West State Street, Trenton, NJ 08625 or from the Historic Preservation Office's website at http://www.state.nj.us/dep/hpo/1identify/survarkeo.htm.

History

• Amended by R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• Added definitions "Principal investigator" and "Smithsonian (SITS) numbers".

N.J. Admin. Code § 7:4-8.2 Types of consultation available to other Department programs and non-Federal governmental agencies

(a) The Historic Preservation Office, under the supervision of the State Historic Preservation Officer, will provide consultation to any Department program and may provide consultation to any non-Federal governmental agency in the following areas:

1. Determining the area of potential effect of a proposed project;

Identifying and evaluating property that is potentially eligible for inclusion in the New Jersey and National Registers of Historic Places, pursuant to the criteria in N.J.A.C. 7:4-2.3;

3. Assessing a potential project's impact upon any property eligible for inclusion in the New Jersey and National Registers of Historic Places;

4. Assessing alternatives to avoid or minimize, and/or mitigate the impacts of a project on a listed property or a property that is eligible for inclusion in the New Jersey and National Registers of Historic Places;

5. Formulating recommendations arising from the assessments provided pursuant to (a)4 above; and

6. Providing technical assistance related to the identification, evaluation and protection of historic property as may be requested.

(b) The Historic Preservation Office will attempt to coordinate any such request for consultation with any historic review or consultation required by law.

N.J. Admin. Code § 7:4-8.3 Standards used for consultation

(a) The criteria for evaluating the eligibility of a property for listing in the New Jersey and National Registers of Historic Places is that set forth in N.J.A.C. 7:4-2.3.

(b) The criteria for evaluating the potential for effects and impacts, assessing alternatives and making recommendations in accord with N.J.A.C. 7:4-8.2 is set forth in:

1. The Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation. Copies are available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420, or from the Department's website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov); and

2. The Secretary of the Interior's Standards for Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings, 36 C.F.R. 68 et seq. as amended. Copies are available from the Historic Preservation Office, PO Box 420, Trenton, New Jersey 08625-0420, or from the website (www.state.nj.us/dep/hpo) or from the National Park Service website (www.nps.gov).

History

• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).

N.J. Admin. Code § 7:4-8.4 Requirements for Phase I archaeological survey

(a) All Phase I archaeological surveys shall be sufficient to enable the identification of archaeological sites in the area of the undertaking's potential impact. The standard for survey sufficiency will be met when the archaeological survey provides identification of historic and prehistoric archaeological sites in accordance with the survey elements listed below and the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (Federal Register 48:190, September 29, 1983 (48 FR 44716)), incorporated herein by reference.

(b) The principal investigator(s) for all Phase I archaeological surveys prepared in accordance with this section shall be a trained professional archaeologist who meets the qualification standards of the National Park Service (NPS) as defined in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (the Standards) referenced in (a) above.

(c) A Phase I archaeological survey shall include:

1. Background research consisting of:

i. A review of primary and secondary sources to identify the kinds of archaeological sites that potentially exist in the area of the undertaking's potential impact; their likely positioning across the landscape and within site soils; information regarding known historic and prehistoric archaeological sites; previous research in the locality; current environmental conditions; paleoenvironmental conditions; and historic and modern land use to facilitate predictions of the types of archaeological sites that may be present. Relevant sources are listed in chapter Appendix 1, incorporated herein by reference;

ii. A field inspection which includes observations regarding topography, historic land use and disturbance, field conditions, and indicators of potential for archaeological deposits (such as buildings, structures, and surface artifact scatters);

iii. The assessment report of a geomorphologist, pedologist or other soils specialist with expertise in Holocene geomorphology to assess potential for deeply buried artifact deposits within the area of the undertaking's potential impact, if the undertaking's area of potential impact is located within a floodplain, colluvial slope, or alluvial fan depositional context; and

iv. For non-linear projects, and for linear projects greater than 100 feet in width of ground disturbance, a complete deed search for the area of the undertaking's potential impact prior to conducting archaeological testing to provide information regarding historic period land use, date by which buildings were present, ethnicity of occupants, number of households or uses through time, and in some instances detailed information regarding owners' occupations, buildings, and land use, thereby providing valuable information to guide field survey;

2. The development of an archaeological site predictive model based upon the results of the background and deed research and field inspection;

3. A systematic archaeological field investigation, including all field methods designed so that:

i. All portions of the area of the undertaking's potential impact defined as having potential to hold archaeological sites by the archaeological site predictive model referenced in (c)2 above shall be tested through systematic subsurface testing and/or archaeological surface inspection (including mapping, and collection, and augmented by subsurface testing), in accordance with (c)3ii through viii below.

ii. All sediments shall be screened through 1/4-inch or finer mesh hardware cloth for areas that will be shovel tested rather than surface collected;

iii. The intensity of subsurface excavation shall be conducted at a density of 17 one-foot diameter subsurface shovel tests per acre, which is equivalent to testing on a 50-foot rectilinear grid, in order to ensure that archaeological sites are not missed by the survey. While all statistically quantifiable sampling strategies of equal overall coverage of the area of the undertaking's potential impact are acceptable, the sampling strategy selected shall minimally average 17 one-foot diameter shovel tests per acre;

iv. For linear projects such as road widening or installation of buried utility lines, where the area of the undertaking's potential impact is 50 feet or less in width, shovel testing at an overall density of one test for every 50 linear feet shall be performed. For linear corridors where the area of the undertaking's potential impact is greater than 50 feet, the principal investigator shall either estimate the acreage of the linear corridor and the survey density excavated shall minimally total a density of 17 tests per acre, or excavate additional transects (one for every additional 50 feet or less in width) at offsets from the first;

v. Shovel testing shall be maintained in planned density through offsets rather than leaving grid points or other test locations untested, when planned test locations are not testable (for example, because of a rock or other obstruction) or obviously disturbed. Excavation at minimal offsets when necessary will facilitate identification of archaeological sites with minimal to no impact to the validity of the selected sampling strategy. Large offsets and those within archaeological sites should be illustrated in the project and site mapping;

vi. Systematic shovel testing as described in (c)3iii above shall be augmented by judgmentally placed subsurface tests excavated at the discretion of the principal investigator. These tests shall be used to investigate locations that are deemed during the field survey component of the Phase I survey to be likely archaeological site areas that were not identified as such during project planning. Judgmentally placed tests may also be excavated to collect information to supplement that obtained from the planned tests. These tests may prove useful to the survey effort by rendering additional phases of survey unnecessary, or allowing refinement of the recommendations through increased information about a discovery. Therefore, limited additional subsurface testing is necessary when it may provide benefit to the survey and survey recommendations;

vii. All shovel tests shall be excavated adequately deep below the ground surface to penetrate the full depth of intact Holocene sediments to culturally sterile sediments, and to the extent possible, shall be excavated according to visible stratigraphy (either cultural or natural strata);

viii. The archaeological field investigation shall be adequate to identify and investigate deeply buried cultural deposits (such as riverine settings where flooding has resulted in deep deposition of sediment). This shall be ensured through incorporation of an additional complementary testing and sampling strategy. The testing and sampling strategy shall be developed in consultation with the Historic Preservation Office and a geomorphologist, pedologist and/or other soils specialist with expertise in Holocene geomorphology. The individual or individuals shall have sufficient training to adequately evaluate the sedimentology, stratigraphy, and pedology of the deposits in the field and be able to describe and analyze the deposits using standard terminology and methods. The individual or individuals shall possess post-graduate degree(s) in an earth-science field (geology, physical geography, pedology, quaternary studies) or have demonstrated professional expertise in field geomorphology through experience and publications. Previous field work experience in the northeastern United States is necessary;

ix. Machine or mechanical-assisted excavation of soil shall be treated in the same manner as manually excavated soil matrices. For example, soil cores shall be recorded stratigraphically, to the extent possible, and the soil matrices screened for artifacts. For backhoe excavations, a sample of the soil matrices may be screened for artifacts; and

x. Deviation from the testing density specified in this paragraph shall be approved by the Historic Preservation Office in advance of the field survey. Unless necessitated by specific circumstances related to the area to be surveyed, such as fill depths greater than six feet or a test area under a building or highway, deviations will not be approved;

In contexts where it can be demonstrated that all Holocene sediments are contained within a plow zone, surface inspection supplemented by broad interval subsurface testing may be substituted for 17 tests per acre to identify archaeological sites in the area of the undertaking's potential impact, provided that rainfall subsequent to plowing or other cultivation has been sufficient to wash obscuring sediments from exposed artifacts and that the ground surface visibility is at minimum 50 percent. When surface inspection is employed, the following methods shall be adhered to:

i. Cultivated or formerly cultivated fields shall be plowed or disked in order to eliminate ground cover; however, the cultivation shall not extend deeper than previous disturbance;

ii. If surface visibility does not meet or exceed these criteria, the field area should either be shovel tested or surface inspected after sufficient rainfall and/or cultivation to produce a minimum of 50 percent visibility;

iii. The survey lane spacing shall not exceed 10 feet;

iv. Information on pedestrian survey transects and conditions that may have impacted the recovery of artifacts and/or future survey including lane spacing and orientation, soil type and condition, surface visibility, vegetative cover, lighting conditions, and presence of hazardous material or other impediments to survey shall be recorded;

v. The locations of recoveries shall be recorded, mapped, and the recoveries retained by provenience (either recovery grid or point provenience) for analysis; and

vi. The absence of potentially artifact bearing deposits below the depth of plowing shall be adequately documented by subsurface testing, especially within the limits of identified sites and at the base of knolls and hills;

5. Analysis of data generated from the archaeological testing and field survey components of the Phase I archaeological survey to include, at minimum, the analyses specified at 5i through v below. Additional analyses to clarify the principal investigator's recommendations regarding the nature and structuring of additional phases of survey or the principal investigator's recommendation of no further consideration of archaeological properties within the area of the undertaking's potential impact shall be conducted, if applicable. Required analyses and treatment of artifacts shall include:

i. Comparison of the types, number, and positioning (vertical and horizontal) of archaeological sites across and within the area investigated that were identified during the Phase I archaeological survey with those archaeological sites anticipated after background research and development of the archaeological site predictive model;

ii. Analysis of artifacts in accordance with basic classifications for historic period and prehistoric period artifacts including chronology, cultural affiliation, technology; and function;

iii. Recording of artifacts of all categories quantitatively;

iv. Cleaning recovered artifacts (except in cases where this might damage fragile artifacts or impair future analysis such as starch grain analysis of Native American stone tool surfaces), and labeling and packaging the artifacts to clearly indicate the provenience from which they were recovered; and

v. Discard of only limited categories of artifacts and only after they have been identified and recorded as to provenience and classification. This shall be solely limited to modern objects and bulk items such as concrete, asphalt, and coal that have no diagnostic value beyond identification of their presence and depositional context (that is, their vertical and horizontal positioning across the landscape, within site soils, and relative to other identified archaeological artifacts and features). Representative specimens of these latter items shall be retained. No prehistoric artifacts shall be discarded during the Phase I survey;

6. Provisions for the permanent curation of the artifact collection and records at a repository that meets the National Park Service's curation standards, 36 CFR Part 79, incorporated herein by reference, (for example, the New Jersey State Museum) as part of the Phase I survey project design. The receiving institution shall be contacted in advance in order to ascertain its requirements for preparation of the artifacts for curation within that facility. It may be possible to discard artifacts not associated with a potentially National Register or National Register eligible archaeological site at the conclusion of all phases of an archaeological investigation, but this decision shall not be made prior to the conclusion of all phases of archaeological survey and the explicit approval of the Historic Preservation Office and other reviewing agency, including the repository slated for receipt of the artifact collection and associated records; and

7. Reporting of all research, survey, and analysis required above for Phase I survey in accordance with N.J.A.C. 7:4-8.5.

History

• New Rule, R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).

N.J. Admin. Code § 7:4-8.5 Requirements for archaeological survey reports-standards for report sufficiency

(a) All archaeological survey reports submitted to the Department shall be sufficient to enable the identification, evaluation, and treatment of historic properties in the area of the undertaking's potential impact. The standard for report sufficiency will be met when the report addresses all of the items listed below.

1. Archaeological survey reports shall be produced:

i. With a hard-covered binder suitable for shelving;

ii. As a stand alone document that does not require the reader to obtain any other document or report to interpret and utilize its findings;

iii. On bond paper, including all maps, figures, charts, plates, and tables;

iv. With all figures, plates, charts, and tables incorporated into the report body following the page(s) on which they are discussed;

v. With all photo CD-Rs in pockets, envelopes, or sleeves within the report body;

vi. With all materials adequately durable to allow frequent use without damage;

vii. With no page that is larger than 11 inches by 17 inches; and

viii. With all pages sequentially paginated.

2. Archaeological survey reports shall include the following elements and sections:

i. Title Page, containing information specified in (a)3 below;

ii. Management Summary, containing information specified in (a)4 below;

iii. Table of Contents, identifying all report sections by page number, containing information specified in (a)5 below;

iv. Lists identifying all figures, plates, and tables, containing information specified in (a)5 below;

v. Introduction, containing information specified in (a)9 below;

vi. Background Research, containing information specified in (a)10 below;

vii. Research Design, containing information specified in (a)11 below;

viii. Field and Laboratory Methods, containing information specified in (a)12 below;

ix. Field Results, containing information specified in (a)14 below;

x. Artifact Analysis, containing information specified in (a)19 below;

xi. Interpretations, containing information specified in (a)20 below;

xii. Evaluation of National Register Eligibility, containing information specified in (a)21 and 22 below;

xiii. Assessment of the Impacts of the Undertaking on Historic Properties, containing information specified in (a)26 below;

xiv. Recommendations, containing information specified in (a)27 below;

xv. References Cited, containing information specified in (a)28 below; and

xvi. Appendices, containing information specified in (a)29 below.

3. All reports shall include a title page clearly depicting:

i. The title which shall include the phase of work as well as the location of the property which is the subject of the report (including municipality and county);

ii. The names of the report author(s), including contributors;

iii. The agency, organization or firm preparing the report;

iv. The agency for whom report has been prepared;

v. The project number(s), if applicable;

vi. The contract number(s), if applicable; and

vii. The date of report submission or completion.

4. All reports shall include a management summary that is comprised of a summary of:

i. A description of the undertaking;

ii. The location and acreage of areas of proposed ground disturbance associated with the undertaking;

iii. The regulatory process or funding triggering the Department review of the document, if applicable;

iv. The field methods used in collecting data;

v. The results of the archaeological survey in terms of whether archaeological sites were identified;

vi. The evaluation of National Register eligibility, assessment of impacts to identified archaeological sites, and recommendations for future treatment relative to identified archaeological sites;

vii. Identification of the location(s) where copies of the report are on file; and

viii. Identification of the planned repository for artifacts and records from National Register eligible and potentially National Register eligible sites.

5. All reports shall include a table of contents that is comprised of:

i. All report sections identified by page number;

ii. A list of figures identified by number of the figure and page number;

iii. A list of plates identified by number of the plate and page number; and

iv. A list of tables identified by number of the table and page number.

6. All photographs used in the report shall be:

i. Of sufficient visual quality and clarity to accurately convey the subject matter and to provide a comprehensive record of the findings;

ii. Photographic prints generated from 35 millimeter film or digital images meeting the standards specified at N.J.A.C. 7:4-8.9(a)3;

iii. Reproduced at a minimum print size of 3.5 inches by five inches or larger, as necessary for clarity;

iv. Labeled with captions that identify the photographer, date of exposure, and direction or orientation;

v. Taken of features, excavation units, and trenches and shall include a scale, the orientation of the photograph, and a sign board noting the provenience and subject of the photograph;

vi. Taken of artifacts and shall include a scale; and

vii. Taken of the area of the undertaking's potential impact and archaeological site overview, be labeled with the direction or orientation of the photograph, and keyed to a map.

7. All maps, including reproductions of historic maps, shall include a north arrow, accurate bar scale, delineation of the surveyed area, legend, map title, and the year of publication.

8. Cross section and profile drawings shall include scale, elevation, orientation, soil descriptions, and soil colors classified in accordance with The Munsell Soil Color Book, 2009 Revised Edition, incorporated by reference, as amended and supplemented (available from the Munsell Company at www.forestry-suppliers.com, the New Jersey State Library, Rutgers University Library, and Princeton University Library). Detailed plan view drawings shall be keyed to the site map.

9. Archaeological survey reports shall include an introduction that contains the following:

i. A summary of scope of work, purpose, and goals of the undertaking;

ii. A description of all applicable regulations and permits that are necessary to conduct the undertaking, as known;

iii. Identification of the entity responsible for administration of the undertaking and the contracting agency;

iv. A general description of the survey effort, including location, number of person days spent in the field, survey conditions and/or constraints;

v. The acreage of the areas of proposed ground disturbance associated with the undertaking and, if different, the acreage of the surveyed area;

vi. The surveyed area accurately delineated on a U.S.G.S. 7.5-minute topographic map;

vii. The appropriate county soil survey map, if one exists for the area, with the surveyed area accurately delineated;

viii. The names and roles of all individuals who participated in the survey, analysis and/or reporting; and

ix. The name and location of the curatorial facility for the artifact collections from potentially National Register eligible archaeological sites.

10. Archaeological survey reports shall include the results of background research conducted for the area of the undertaking's potential impact. This section will vary in length and scope depending on level of investigation, but shall relate directly to the undertaking's locality. Background research shall be sufficient to enable an evaluation of National Register eligibility by providing historic contexts for identified sites. For historic sites, background research shall be sufficient to identify associations with significant people and events.

i. Standard repositories and sources shall be consulted as part of conducting background research, and shall be documented in the archaeological survey report with a record of dates of visits, dates of phone calls, summaries of each phone call, and copies of correspondence (if received or sent). The following organizations shall be considered to be standard repositories and/or sources:

(1) The Historic Preservation Office;

(2) The New Jersey State Museum, Bureau of Archaeology and Ethnology;

(3) Local County Cultural and Heritage Commission(s);

(4) Local Certified Local Governments;

(5) Local historic societies;

(6) The Archaeological Society of New Jersey;

(7) Other individuals, agencies, and groups possessing knowledge of the history and prehistory of the area under investigation;

(8) Native American informants both within and outside New Jersey, as appropriate (for example, for Native American sites);

(9) The New Jersey Pinelands Commission, if the undertaking is within the boundaries of the Pinelands National Reserve, as defined by the National Parks and Recreation Act of 1978 ( Pub. L. 95-625); and

(10) The Canal Society of New Jersey and other canal-related groups, if the undertaking is in the vicinity of the Morris Canal or the Delaware and Raritan Canal.

ii. The discussion of the results of background research shall include:

(1) A description of the environmental setting of the area of proposed ground disturbance associated with the undertaking, including topography, soils, hydrology, geology, present climate, and current vegetation;

(2) A summary of the paleoenvironment of the area of the proposed ground disturbance associated with the undertaking;

(3) A discussion of the land use history of the site of the undertaking including documented ground disturbances and current conditions;

(4) An overview of the prehistoric and historic culture history of the area of the proposed ground disturbance associated with the undertaking, specific to the surveyed area which provides contexts for research questions, survey methods, site evaluations, and recommendations for further work;

(5) A discussion of known sites, previous investigations, and previous research conducted in the area of the proposed ground disturbance associated with the undertaking;

(6) A discussion of information provided by artifact collectors and Archaeological Society of New Jersey local chapter members;

(7) A discussion of primary documentary research that references historic maps (including all fire insurance maps, such as those created by the Sanborn Company available, for the area for all survey phases) and all deeds and property title transfers for the subject site for all survey phases; and

(8) A discussion of when during the survey various aspects of background research were conducted, and a rationale for any aspects of the background research that were not conducted prior to initiation of the field survey.

Archaeological survey reports shall include a description of the research design that formed the basis of the archaeological survey effort. This section will vary depending on the phase, scale, and scope of the investigation. It shall outline the purpose of the investigation, assumptions about the locations and types of cultural resources within the area of the undertaking's potential impact, and the rationale for the methods employed in the investigation. Discussion of the following shall be included:

i. Research objectives and the theoretical context for the archaeological survey;

ii. Specific research problems, objectives, and hypotheses that are being investigated as part of the current survey effort;

iii. All field and laboratory methods that will be employed to investigate research problems, objectives, and hypotheses;

iv. A discussion of the anticipated results of the research; and

v. Anticipated research locations, sources, and materials that will be necessary and useful to facilitate investigation and identify archaeological sites.

Archaeological survey reports shall include a description of the field and laboratory methods and procedures employed, including a rationale for using those methods and procedures, a discussion of sources of bias in the methods and procedures employed, and any problems or obstacles encountered during the archaeological survey effort. The discussion shall also include descriptions of:

i. Archaeological materials sorted and discarded both in the field and in the laboratory;

ii. Sampling design employed in the survey and the rationale for using that sampling design, including justification for excluding areas from subsurface testing and, as appropriate, stratification of the survey area into areas of high, medium, low and no potential for the presence of archaeological sites;

iii. The breakdown of the total number and sizes of shovel tests, test excavation units, and trenches excavated during the survey;

iv. Any change(s) that were made during fieldwork from the methods stated in (a)12 above, and the rationale(s) for these change(s); and

v. The definition of "site" used in the survey.

13. Site plans illustrating locations of survey and test excavations shall be included in the discussion of the field and laboratory methods used in the survey. Tests that were planned but excluded from excavation shall not be illustrated on site plans. One site plan/set of site plans shall illustrate both the proposed development and archaeological test locations that fall within archaeological sites or are near existing buildings greater than 50 years in age. Shovel tests, test excavation units, and/or trenches that were planned but excluded from excavation shall not be illustrated on site plans.

14. Archaeological survey reports shall include a description of field results, including:

i. A complete description of all areas investigated, including those where resources were not identified;

ii. The number of shovel tests per acre excavated, exclusive of areas excluded from testing (for example, because of disturbance) for Phase I testing;

iii. A summary of soils and stratigraphy across the area of proposed ground disturbance associated with the undertaking, by location, including areas and types of disturbance including variations in natural stratigraphy encountered in shovel tests and units;

iv. Descriptions of stratigraphy of representative shovel tests discussed with representative illustrations or listings appended in the rear of the report;

v. A discussion of the depth at which tests were terminated and rationale for the termination depths of shovel tests;

vi. A discussion of artifact proveniencing methods used during surface collection;

vii. A detailed description of features in both site descriptions and site registration forms;

viii. A discussion of feature fill treatments (for example, water screening and flotation);

ix. A discussion of any field sorting and disposal of any cultural material recovered during the archaeological survey as well as the rationale for decisions about field sorting and disposal; and

x. A description and illustration, as appropriate, of each identified site including topographic setting, stratigraphy, size, noted structures or features, artifact types, an estimate of artifact density, and disturbances.

15. The locations of all archaeological sites identified during the survey shall be marked on U.S.G.S. 7.5-minute topographic survey map(s).

16. All references to archaeological sites in the text, figure captions, and table titles in the report shall include Smithsonian (SITS) numbers.

17. New Jersey State Museum site registration forms with SITS numbers shall be appended to the report for all sites, both newly recorded and revisited, investigated in the survey.

18. Archaeological survey reports shall include maps, figures, and photographs of test locations and proveniences, including those for shovel tests, features, soil profiles, and disturbances, as appropriate to illustrate the presentation of results and recommendations.

19. Archaeological survey reports shall include a section on artifact analysis that provides descriptions of artifacts identified during the survey, the results of analysis of those artifacts, and the definitions of artifact classes and attributes referenced in the analysis. The artifact analysis section shall also include:

i. Photographs and/or drawings of diagnostic and representative artifacts meeting the standards specified at N.J.A.C. 7:4-8.9(a)3, including a scale;

ii. A complete inventory of artifacts by provenience and class included as an appendix;

iii. Tables and/or other summary presentations of artifact classes and data represented by recovered data;

iv. The name and location of the repository for the artifact collection, copies of all survey records and files, and reference to the draft deed of gift form, if applicable (with the draft deed of gift form appended);

v. The standards used for artifact processing and collection treatment (such as, in accordance with the New Jersey State Museum's standards and guidelines); and

vi. A discussion of how the proposed curation facility meets the Secretary of the Interior's Standards for Curation, 36 CFR 79, if the planned curatorial repository is not the New Jersey State Museum, including discussion of the following:

(1) Adequate climate control;

(2) Security from theft, vandalism, fire, flood and other natural and human threats;

(3) Access for research; and

(4) A mission compatible with retention, care, and interpretation of collections.

20. Archaeological survey reports shall include a section on the interpretation of the results of the survey that includes:

i. A discussion of the results in terms of the background cultural context, research design, goals, and research problems with reference to the historic contexts;

ii. A discussion of the constraints and the reliability and/or appropriateness of the methods used in the survey; and

iii. Recommendations for additional research and/or methods of investigation in light of the results of the current work.

21. Archaeological survey reports shall include an evaluation of the National Register eligibility of all sites identified during the survey.

22. Phase I reports shall address potential National Register eligibility.

23. Documentation shall be sufficient to allow independent evaluations of New Jersey Register and National Register eligibility of identified properties. This shall include sufficient documentation to evaluate significance using all appropriate National Register Criteria and Criteria Considerations at 36 CFR 60.4, incorporated by reference, as amended and supplemented.

24. Reports shall contain complete information and evaluations on both horizontal and vertical extent of evaluated sites, if applicable.

25. Recommendations that a site is not National Register eligible shall be fully documented in accordance with the National Register Bulletin 36, Guidelines for Evaluating and Registering Archeological Properties, incorporated by reference and as amended by the National Park Service, available from the U.S. Department of the Interior, National Park Service at http://www.nps.gov/nr//publications/bulletins/arch/index.htm. The eligibility of each site shall be assessed for listing in the New Jersey and National Registers of Historic Places, using all appropriate National Register Criteria and Criteria Considerations at 36 CFR 60.4. The factors considered in making the assessment shall be fully described in accordance with National Register Bulletin 36, Guidelines for Evaluating and Registering Archeological Properties, incorporated by reference and as amended by the National Park Service, available from the U.S. Department of the Interior, National Park Service at http://www.nps.gov/nr//publications/bulletins/arch/index.htm.

26. Archaeological survey reports shall identify and describe both direct and indirect impacts of the undertaking on each site identified, including depictions of identified sites on project maps. The known or estimated site limits shall be described and illustrated in relation to the boundaries of the area of proposed ground disturbance associated with the undertaking, including all potential project related impacts.

27. Archaeological survey reports shall include appropriate recommendations for each site, including, for example, no further work, additional investigations, data recovery, avoidance, and mitigation as well as specific tools, methods, and analyses recommended for achieving these goals. Other specific recommendations may also be appropriate, including, for example, special analysis that should be undertaken if there is additional work at the site.

28. Archaeological survey reports shall contain a sources/references cited section in American Antiquity format, as published in the SAA Journal Style Guide, incorporated by reference, as amended and supplemented, published by the Society for American Archaeology, available from the Society for American Archeology at 1111 14th Street NW, Suite 800, Washington, DC 20005-5622 or on their website at http://www.saa.org/AbouttheSociety/Publications/StyleGuide/tabid/984/Default.aspx. The sources/references section shall include:

i. References cited and consulted in the preparation of the report;

ii. Maps;

iii. Archival documentation;

iv. All personal communications and sources of information from State, county, and local organizations and informants, including oral histories; and

v. All correspondence relating to the proposed undertaking.

29. Archaeological survey reports shall contain appendices consisting of:

i. Qualifications of principal investigator, field director, and laboratory supervisor, if applicable, including vitae of principal investigators appended, if not previously submitted to the Historic Preservation Office specifically demonstrating that the principal investigator meets the relevant National Park Service Professional Qualifications Standards for archaeology as published in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, as referenced in N.J.A.C. 7:4-7.4(b)1;

ii. The scope-of-work and/or technical proposal for the archaeological survey;

iii. Representative soils logs;

iv. The artifact inventory, organized by provenience;

v. Any specialized artifact analyses and deed research that were conducted as part of the survey and reporting;

vi. New Jersey State Museum site registration forms for all recorded sites, and site form updates for revisited sites; and

vii. Supporting documents, including pertinent correspondence about the undertaking.

History

• New Rule, R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).
• Notice of readoption with technical change.
• See: 47 N.J.R. 1947(a).
• Administrative change.
• See: 47 N.J.R. 2292(a).

N.J. Admin. Code § 7:4-8.6 Standards for architectural survey reports

(a) All architectural survey reports submitted to the Department shall be sufficient to enable the identification, evaluation, and treatment of historic properties in the area of a proposed undertaking's potential impacts. The standard for report sufficiency will be met when the report addresses all of the items listed below.

1. Architectural survey reports shall be produced:

i. With a hard-covered binder suitable for shelving;

ii. As a stand alone document separate from other documents or reports;

iii. On bond paper for all pages;

iv. With citations that follow the format established in the Chicago Manual of Style, 14th Edition, incorporated by reference, as amended and supplemented, available at most local libraries or online at http://www.chicagomanualofstyle.org/tools_citationguide.html;

v. With citations given as footnotes rather than as endnotes or parenthetical references;

vi. With all figures, plates, and tables incorporated into the report body on or following the page(s) on which they are discussed;

vii. With all photo/text CD-Rs labeled and in pockets, envelopes, or sleeves within report body;

viii. With all materials adequately durable to allow frequent use without damage;

ix. With no page that is larger than 11 inches by 17 inches in size; and

x. With all pages sequentially paginated.

2. Architectural survey reports shall include the following elements and sections:

i. Title Page, containing information specified in (a)3 below;

ii. Management Summary, containing information specified in (a)4 below;

iii. Table of Contents identifying all report sections by page number;

iv. Lists identifying all figures, plates, and tables by page number;

v. Introduction, containing information specified in (a)5 below;

vi. Research Design, containing information specified in (a)6 below;

vii. Setting, containing information specified in (a)7 below;

viii. Historical Overview, containing information specified in (a)8 below;

ix. Field Results, containing information specified in (a)9 below;

x. Assessment of the impacts of the undertaking on historic properties, containing information specified in (a)10 below;

xi. Data Summary, containing information specified in (a)11 below;

xii. Bibliography, containing information specified in (a)12 below; and

xiii. Appendices, containing information specified in (a)13 below.

3. Architectural survey reports shall include a title page clearly depicting:

i. The report title, including municipality(s) and county(s);

ii. The author(s), including contributors;

iii. The agency, organization or firm preparing the report;

iv. The agency and/or client for whom the report has been prepared;

v. The contract number(s), if applicable;

vi. The project number(s), if applicable; and

vii. The date of report submission or completion.

Architectural survey reports shall include a management summary of not more than two pages in length that includes:

i. The report title;

ii. A description of the undertaking;

iii. A description of the area of the undertaking's potential impacts;

iv. The location of the area of the undertaking's potential impacts including county(s) and municipality(s);

v. The approximate size of the area of the undertakings potential impacts in square miles or acreage;

vi. A description of the similarities or differences between the area of the undertaking's potential impact and the area surveyed in the report;

vii. The title(s) of the 7.5-minute USGS Topographic Quadrangles(s) that corresponds to the location of the area of the undertakings potential impacts;

viii. The regulatory process or funding triggering the Department review of the document, if applicable;

ix. A description of all planned work activities associated with the undertaking;

x. The number of historic properties identified by the current survey effort;

xi. The number of properties previously identified as meeting the National Register Criteria for Evaluation (36 CFR 60.4);

xii. The number of properties recommended as meeting the National Register Criteria for Evaluation (36 CFR 60.4);

xiii. An identification and description of both the direct and indirect impact of the undertaking on historic properties; and

xiv. The location(s) where copies of the report are on file.

5. Architectural survey reports shall include an introduction that contains the following:

i. A statement of the purpose and goals of the undertaking;

ii. A list of all applicable regulations and permit requirements, as known;

iii. A description of the administration of the undertaking and responsible contracting agency including identification of specific representatives;

iv. A general description of the survey effort, including the undertaking location, approximate number of person days spent in the field, environmental conditions and constraints; and

v. An undertaking base map depicting the boundaries of the survey area, the location and boundaries of all surveyed properties, and the precise limits of proposed construction.

6. Architectural survey reports shall include a summary of the research design that contains the following:

i. A statement of objectives;

ii. A list of research materials that are expected to be used in background and/or property specific research, including:

(1) Historic maps;

(2) Historic plates;

(3) Census returns (population, agricultural, and/or industrial);

(4) Oral histories;

(5) Building permits;

(6) Blueprints;

(7) Title abstracts;

(8) Local directories/gazetteers;

(9) Insurance records;

(10) Newspapers;

(11) Deeds and wills;

(12) Property tax records;

(13) Road survey data;

(14) Building contracts;

(15) Documentation generated as part of the National Park Service's Heritage Documentation Programs (Historic American Building Survey, Historic American Engineering Record, or Historic American Landscape Survey), a substantial portion of which is available through the Library of Congress online at http://lcweb2.loc.gov/ammem/collections/habs_haer/;

(16) Ethnographies;

(17) Cemetery records;

(18) Commercial histories;

(19) Court documents;

(20) Estate records;

(21) Military records;

(22) Photographs and postcards;

(23) Incorporation records; and

(24) Published histories.

iii. A description of the field research and evaluation methods including:

(1) A description of the methods used to determine the area of the proposed undertaking's potential impacts, including consideration of indirect impacts such as vibration or a change in setting, and including references to consultation between a Federal agency and the Historic Preservation Office in determining the area of the proposed undertaking's potential impacts when such consultation has occurred;

(2) The criteria used to determine significance;

(3) The criteria used to determine effect;

(4) The estimated percentage of total undertaking area investigated; and

(5) A discussion of any specific problems or biases encountered during research; and

iv. A discussion of expected results, including the kind, number, character, and condition of property types that may exist in the area of the undertaking's potential impacts based on background research.

7. Architectural survey reports shall include a description of the setting of the area of the undertaking's potential impacts including:

i. A description of the urban, rural, or suburban character of the area of the undertaking's potential impacts;

ii. A description of the surrounding natural environment;

iii. A description of the surrounding built environment including properties designated as National Historic Landmarks, properties listed in the New Jersey and/or National Registers of Historic Places, properties previously recommended as eligible for listing in the New Jersey and/or National Registers of Historic Places, and locally designated historic properties; and

iv. A brief architectural analysis of the area including a discussion of integrity, physical condition, and layout.

8. Architectural survey reports shall include a historical overview of the area of the undertaking's potential impacts, including:

i. A background history of the area of the undertaking's potential impacts and its surroundings that incorporates the established New Jersey historic contexts on file at the Historic Preservation Office and addresses the development of modes of transportation and their systems, the development and roles of community and economic institutions, any ethnic customs and neighborhoods, and prominent local personalities; and

ii. A narrative history specific to the area of the undertaking's potential impact and the historic properties it contains.

9. Architectural survey reports shall include a discussion of field results and relevant Architectural Survey Forms with all applicable fields completed. The architectural survey forms are incorporated herein by reference as chapter Appendix 2.

10. Architectural survey reports shall include a discussion of the undertaking's potential impacts on historic properties, including:

i. A discussion of evaluated alternatives to the proposed undertaking;

ii. An effect assessment for the preferred alternative; and

iii. A discussion of mitigation options, as applicable.

11. Architectural survey reports shall include a data summary listing all surveyed properties including:

i. The property name;

ii. The property address;

iii. An eligibility recommendation; and

iv. An effect recommendation.

Architectural survey reports shall include a bibliography for all research materials consulted and references cited, including all maps, archival documentation, interviews, and pertinent correspondence and all personal communications and sources of information from State, county, and local organizations and informants. Bibliographic entries shall reference repositories or source locations.

Architectural survey reports shall include as appendices:

i. The request for proposal (RFP) or scope of work statement for the undertaking;

ii. Supporting documents including pertinent correspondence;

iii. The author(s) vitae/resume;

iv. Information on local designation ordinances and authority; and

v. All relevant completed architectural survey forms.

14. All plates included in the architectural survey report shall be:

i. Reproduced with sufficient visual quality and clarity to accurately convey the subject and convey a comprehensive record of the findings;

ii. Photographic prints generated from 35 millimeter black and white or color film, or if submitted in digital form, shall meet the digital image standards specified at N.J.A.C. 7:4-8.9(a)3;

iii. Reproduced at a minimum print size of 3.5 inches by five inches; and

iv. Labeled with captions that identify the name of the subject, location, photographer, date of exposure, and camera orientation.

15. All maps included in the architectural survey report shall include:

i. A bar scale;

ii. A north arrow;

iii. A legend;

iv. A title;

v. The year of publication; and

vi. A delineation of the area of the undertaking's potential impacts.

History

• New Rule, R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).

N.J. Admin. Code § 7:4-8.8 Standards for an alternatives analysis for buildings meeting National Register of Historic Places criteria

(a) Where a proposed undertaking will have an adverse impact to a building(s), an alternatives analysis will be requested by the Department pursuant to the Coastal Zone Management Rules, N.J.A.C. 7:7, Freshwater Wetlands Protection Act Rules, N.J.A.C. 7:7A, The New Jersey Register of Historic Places Rules, at N.J.A.C. 7:4-7.2, or the Highlands Water Protection and Planning Act Rules, N.J.A.C. 7:38, to analyze whether an alternative to the proposed undertaking is available, which would result in lesser impacts to buildings. Alternatives analyses submitted to the Department shall be sufficient to enable the identification and evaluation of all alternatives to a proposed project that will avoid or minimize the encroachment to the subject building(s) in the area of undertaking's potential impact. The standard for analyses sufficiency will be met when the analysis addresses the items listed below.

1. All alternatives analyses shall include an introduction to the project that provides:

i. Identification of the regulatory action triggering the need for an alternatives analysis;

ii. A project location map including the subject building(s), as well as any other known historic properties;

iii. Information about the subject building(s) that includes:

(1) A statement of the historical significance of the subject building(s);

(2) A physical description of the subject building(s) including character-defining features; and

(3) A depiction of the boundary of the historic property on which the subject building(s) is located;

iv. A description of the proposed project and potential impacts on the subject building(s); and

v. A statement of project need and/or objectives as follows:

(1) For private projects (privately owned projects with no public funding), when the use does not accommodate the resource type, explain why the building(s) could not be integrated into or within the plan; and

(2) For public project (public ownership or use, and/or public funding on either public or private property), list other locations or buildings that have been investigated to determine if they could accommodate the project need/objectives, and any other uses that have been investigated that can be accommodated by the subject building(s).

vi. A summary of redevelopment scenarios for the subject building(s), with notation of the preferred alternative; and

vii. A description of how the proposed undertaking meets the local master plan and zoning requirements and local development trends.

2. The alternatives analysis shall include the following photographic documentation:

i. Contextual photographs illustrating the relationship of the subject building to the character of its surrounding area, keyed to a project site plan that indicates the location and direction from which each photograph was taken; and

ii. Sharp, clear images which convey the character and significance of the subject building, as well as details, such as materials and craftsmanship.

3. The alternatives analysis shall address the following issues regarding design and condition of the subject building:

i. A narrative summary of adaptive reuse of the subject building(s) as an alternative in accordance with the Secretary of Interior's Standards for Rehabilitation, 36 CFR 68.3(b), incorporated by reference, as amended and supplemented. Design alternatives must explore the potential for adding floors, additions or interior alterations that might be viable while retaining the character defining features of the subject building(s);

ii. A description of the conditions that may impact the project, such as the presence of wetlands or open water, archeological resources, access/egress issues, soil conditions; and

iii. Where complete demolition is proposed for any reason, an existing conditions assessment prepared by a historic architect who meets the Secretary of the Interior's Professional Qualification Standards in Historic Architecture, as published in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (Federal Register, Volume 48, No. 190) effective Thursday, September 29, 1983, incorporated by reference, as updated and revised by the National Park Services (see http://www.nps.gov/history/local-law/arch_stnds_0.htm), or an engineer who meets the Secretary of the Interior's Proposed Historic Preservation Professional Qualification Standards in Engineering (Federal Register, Volume 48, No. 190), Friday, June 20, 1997, see http://www.nps.gov/history/local-law/gis/html/quals.html), incorporated by reference, shall be submitted to the Historic Preservation Office for review and approval. The assessment shall include:

(1) A narrative summary of recommendations in order of feasibility;

(2) An evaluation of the architectural and structural features of the exterior and interior of the subject building(s);

(3) An evaluation of the environmental systems of the subject building(s); and

(4) Annotated architectural drawings and existing condition photographs of the subject building(s).

4. The alternatives analysis shall address the following issues regarding zoning and/or building code constraints:

i. Code constraints limiting adaptive reuse shall be documented, using the specific code citation and description from the Rehabilitation Subcode for existing buildings, N.J.A.C. 5:23-6;

ii. An analysis of required work to comply with the code and a cost estimate for this work; and

iii. Local zoning variances needed to facilitate adaptive reuse.

5. The development of alternatives and their analysis shall include:

i. A reasonable number of prudent and feasible alternatives, commensurate with the effect of the foreseeable impacts of the proposed project on the subject property(s), including any which may compromise project objectives, fully described and evaluated with regard to their impact upon the subject building(s); and

ii. An analysis of evaluating factors including:

(1) Local jobs generated;

(2) Business creation;

(3) Property tax stabilization or enhancement;

(4) Other economic activity that may or may not result in a rehabilitation project versus a new construction project; and

(5) The benefits of cultural and heritage tourism and how the subject building(s) can enhance profitability of the subject property.

6. The analysis of alternatives shall be sufficiently detailed and rigorous to permit independent comparative evaluation of the benefits, costs, and environmental risks of the proposed project and each reasonable alternative, and shall include the following:

i. For private projects, the alternatives shall provide a full understanding of the economic parameters that would prohibit the owner from realizing a return on investment in the subject building(s) while keeping it in its historic use, versus its proposed use, versus rehabilitating the subject building(s)for a new use. The return does not necessarily have to be calculated based on the highest economic return. The new use may or may not be the same as the goals and objectives of the project;

ii. Consideration of financial benefits such as easements, investment tax credits and transfer of development rights; and

iii. A narrative summary of the preferred alternative and full justification for its selection.

7. Alternatives analyses shall include the following appendices:

i. Vitae of persons involved in preparing the report;

ii. All letters from code officials or others with jurisdiction in which the applicant has presented a position or recommendation on the project; and

iii. All comments received from interested parties including municipal historic preservation commissions, historical societies, and/or organizations that have a statewide interest in the protection and preservation of cultural resources.

History

• Administrative Change, 49 N.J.R. 2530(a).

N.J. Admin. Code § 7:4-8.9 Standards for electronic submissions

(a) The Historic Preservation Office will accept information submitted electronically provided such digital information conforms to standards for electronic submissions set forth below and categorized as follows:

1. Maps and geographic data: All submissions shall include digital map data as follows:

i. For individual properties, polygon boundary in ArcView Shapefile format delineated and documented in conformance with N.J.A.C. 7:1D, Appendix A, coded with the following attributes: Property Name, County, Municipality, and Delineation Date, and delivered on CD-R.

ii. For historic districts, delineation shall include the historic district boundary and individual property boundaries for all properties within the historic district delivered as:

(1) Two separate datasets submitted in ArcView Shapefile format delineated and documented in conformance with N.J.A.C. 7:1D, Appendix A delivered on CD-R. The historic district shapefile shall be coded with the following attributes: District Name, County, Municipality, and Delineation Date; and

(2) The property shapefile shall be coded with the following attributes for each feature in the dataset: Property Name, District Name, District Status (Key-Contributing, Contributing, Non-Contributing, or Not Assessed/Unknown), and Delineation date.

iii. For report study areas, polygon boundary in ArcView Shapefile format delineated and documented in conformance with N.J.A.C. 7:1D, Appendix A, coded with the following attributes: Project Name, Agency, County, Municipality, and Delineation Date, and delivered on CD-R.

2. Submission of hard-copy cultural resource studies pursuant to N.J.A.C. 7:4-8.4 through 8.7 shall be accompanied by a digital version saved as one or more PDF documents delivered on CD-R. Such PDF document(s) shall be an exact replica of the hard copy report(s), and shall accompany the original document and any subsequently revised versions.

Digital images submitted pursuant to N.J.A.C. 7:4-8.4 through 8.7 shall be formatted as follows:

i. Original digital photography shall be captured such that the pixel dimensions of the resulting image file exceed two megapixels (approximately 1600 x 1300 pixels), saved in JPEG or TIFF image format and be delivered on CD-R.

ii. Scanned photographic images shall be scanned in RGB color format, 100 percent size at 300 ppi or greater, saved as JPEG or TIFF image format, and delivered on CD-R.

iii. A CD-R containing the digital images shall be provided with the draft report. Both the CD-R and CD-R cover shall be labeled with project/site name and other appropriate identifiers, county, municipality, and names of the firm and/or individuals who created the images.

iv. Scanned maps and documents shall be scanned in RGB color format, 100 percent size at 300 ppi or greater, saved as PNG image format, and delivered on CD-R.

History

• New Rule, R.2008 d.261, effective 9/2/2008.
• See: 40 N.J.R. 1428(a), 40 N.J.R. 4945(b).

Chapter 5 CONSERVE WILDLIFE MATCHING GRANTS PROGRAM

Subchapter 1 GENERAL INFORMATION

N.J. Admin. Code § 7:5-1.1 Scope and authority

This chapter constitutes the rules of the Division of Fish and Wildlife in the Department of Environmental Protection for the Conserve Wildlife Matching Grant Program for nonprofit organizations in accordance with N.J.S.A. 39:3-33.11 et seq. The Conserve Wildlife Matching Grant Program shall be administered through the Endangered and Nongame Species Program within the Division of Fish and Wildlife.

N.J. Admin. Code § 7:5-1.2 Construction

This chapter shall be liberally construed to allow the Department to fully effectuate the purposes of the Act.

N.J. Admin. Code § 7:5-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

"Act" means P.L. 1993, c.119 as amended by P.L. 1995, c.241, N.J.S.A. 39:3-33.11 et seq.

"Applicant" means the nonprofit organization that submits an application for a matching grant in accordance with this chapter.

"Commissioner" means the Commissioner of the Department of Environmental Protection.

"Department" means the Department of Environmental Protection.

"Division" means the Division of Fish and Wildlife in the Department.

"ENSP" means the Endangered and Nongame Species Program in the Division.

"Grant" means a grant awarded pursuant to the Act and this chapter.

"Grant agreement" means a document executed by the Department and the grant recipient that provides grant assistance in an amount and for a project approved by the ENSP.

"Grantee" means an applicant that has received a grant pursuant to P.L. 1995, c.241 and this chapter and that has fully executed a grant agreement document.

"In-kind support" means salary, fringe benefits and materials used only for the purpose of carrying out an approved project.

"Nongame wildlife" means any wildlife for which a legal hunting or trapping season has not been established by the New Jersey Fish and Game Council.

"Nonprofit organization" means an organization with an Internal Revenue Service 501(c)(3) or 501(c)(4) exemption.

"Program" means the Conserve Wildlife Matching Grant Program.

N.J. Admin. Code § 7:5-1.4 Severability

If any section, subsection, provision, clause or portion of this chapter is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter shall not be affected thereby.

Subchapter 2 ELIGIBILITY FOR CONSERVE WILDLIFE MATCHING GRANTS

N.J. Admin. Code § 7:5-2.1 Eligible applicants

Any nonprofit organization as defined at N.J.A.C. 7:5-1.3 shall be eligible to submit an application for Conserve Wildlife matching grants.

N.J. Admin. Code § 7:5-2.2 Eligible projects

(a) Projects eligible to qualify for a grant through the Conserve Wildlife Matching Grants Program shall benefit New Jersey's nongame wildlife through education, outreach, research, conservation, species protection or habitat management or a combination of these. Eligible projects may include, but are not limited to, the following:

1. Education/outreach projects, such as classroom wildlife programs, interpretive signage or public outreach programs;

2. Research projects, such as animal surveys or censuses, habitat monitoring or public attitude surveys;

3. Management projects, such as habitat development, improvement or restoration; or

4. Habitat protection projects, such as establishing and maintaining urban wildlife corridors or wardening sensitive wildlife breeding areas.

(b) Grant funding shall be expended only on projects located in New Jersey.

(c) Projects shall be completed within two years of notification of grant approval and a final project report shall be submitted to the ENSP at the completion of the project. The project report shall include, but not be limited to, a description of the final product as described in the scope of work, any documentation supporting the completion of the grant project (that is, photographs, newspaper articles), the manner in which the funds were expended, and all associated receipts.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

Subchapter 3 ALLOCATION OF CONSERVE WILDLIFE MATCHING GRANT FUNDING

N.J. Admin. Code § 7:5-3.1 Funding availability

The Department shall express its intent to fund a project through a letter of award to the applicant. Funding is guaranteed only after a project agreement has been executed by the Department and funds are subsequently obligated by the Department to the nonprofit organization for a particular project.

N.J. Admin. Code § 7:5-3.2 Ranking of grant applications

(a) Conserve Wildlife matching grant funds shall, for the purpose of determining priority for funding, be ranked on the basis of the degree to which the proposed project:

1. Has the broad support of local or county agencies, civic groups, etc. Letters of endorsement may be submitted to ENSP as evidence of such support;

2. Is responsive to regional as well as local needs;

3. Conforms to project criteria;

4. Shall raise awareness of the public's responsibility to actively conserve wildlife; and

5. Demonstrates a strong likelihood of tangible results.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

N.J. Admin. Code § 7:5-3.3 Grant amount

The minimum grant amount provided by the ENSP shall be $ 2,500; the maximum grant amount shall be $ 10,000.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

N.J. Admin. Code § 7:5-3.4 Grant payment

The entire grant amount shall be released to the grantee in one sum following receipt and acceptance by ENSP of all agreed upon work product of a project, and upon compliance with all terms of the grant agreement required under N.J.A.C. 7:5-4.3.

N.J. Admin. Code § 7:5-3.5 Matching fund

The grantee's share of project funding shall equal at least 50 percent of the grant amount, and shall be in in-kind support, cash match, or any combination of in-kind support and cash match. The availability of the grantee's matching funds shall be certified by a resolution adopted by the nonprofit organization as required pursuant to N.J.A.C. 7:5-4.2(b)1.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

Subchapter 4 APPLICATION AND GRANT AGREEMENT PROCEDURES

N.J. Admin. Code § 7:5-4.1 Announcement of grant funding availability

(a) Notice of funding availability and the opening and closing dates for submission of Conserve Wildlife Matching Grant Program applications shall be published by the Department in the New Jersey Register as required by and in accordance with N.J.S.A. 52:14-34.4.

(b) A notice shall also be posted on the Department's website and sent to email addresses through the Division's listserv for Endangered Species. A person may subscribe to the Division's Endangered Species listserv at http://www.njfishandwildlife.org/lstsub.htm.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

N.J. Admin. Code § 7:5-4.2 Application and review sequence

(a) Nonprofit organizations shall find instructions on how to apply for grant funds on the Division's website at njfishandwildlife.com.

(b) A completed application shall be submitted to the ENSP as directed in the application instructions and shall include:

1. A resolution adopted by the governing body of the nonprofit organization authorizing the organization to enter into the grant agreement and certifying that the matching funds and in-kind support will be provided for the project if the Department approves and funds the project;

2. An IRS letter of determination describing the organization's nonprofit status;

3. A completed grant applicant data form; and

4. A detailed scope of work and a budget.

(c) A notice of receipt of the application shall be sent from the ENSP to each applicant.

(d) Applications shall be reviewed by the ENSP. An applicant who submits an incomplete application shall be notified. If the applicant wishes its project to be reconsidered, the applicant shall complete and resubmit the application as required by the ENSP.

(e) The ENSP shall promptly notify each applicant in writing of its determination to approve or deny an application and, in the case of a denial, shall provide reasons for such denial. An applicant whose application has been denied during one application period may reapply for reconsideration during a subsequent application period.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

N.J. Admin. Code § 7:5-4.3 Development and execution of grant agreement

(a) If the ENSP approves the application submitted pursuant to N.J.A.C. 7:5-4.2, the grant amount shall be determined by the ENSP consistent with N.J.A.C. 7:5-3.3 and in accordance with an executed grant agreement between the Department and the applicant. The grant agreement shall specify, among other things, the following:

1. The amount of the grant;

2. The project scope;

3. The work period, not to exceed two years;

4. The itemized budget; and

5. The work product to be submitted to the ENSP.

(b) During the period between the receipt of the application package by ENSP and the transmittal of the letter of award and execution of the grant agreement by ENSP, ENSP and/or the applicant may revise the application package as necessary to meet the requirements for grant agreements set forth at (a) above. Any such modifications shall be mutually agreed upon in writing by the ENSP and the applicant.

(c) Before the execution of a grant agreement by the Department, the nonprofit organization shall submit to the ENSP a resolution authorizing, by title, an official to execute the grant agreement on behalf of the nonprofit organization.

(d) Once the award is made, the grant award shall become effective upon execution of the grant agreement by the Department's designated representative, who shall sign the grant agreement. The executed grant agreement shall constitute an obligation in the amount and for the purposes stated in the grant agreement. A signed copy of the executed grant agreement shall be returned to each approved applicant as formal documentation of the award.

(e) The terms, conditions, budget and schedule of the grant agreement may be amended or modified in accordance with the procedures established in the grant agreement if mutually agreed upon by the Department and the nonprofit organization.

History

• Amended by 54 N.J.R. 2387(a), effective 12/19/2022

Chapter 5A NATURAL AREAS AND THE NATURAL AREAS SYSTEM

Subchapter 1 NATURAL AREAS AND THE NATURAL AREAS SYSTEM

N.J. Admin. Code § 7:5A-1.1 Scope

(a) This subchapter constitutes the rules and regulations of the Department of Environmental Protection concerning the identification, classification, and management of natural areas and administration of the Natural Areas System pursuant to N.J.S.A. 13:1B-15.4 et seq. and 13:1B-15.12a et seq.

(b) This subchapter shall be deemed to be supplemental to existing Departmental rules and not in derogation thereof.

N.J. Admin. Code § 7:5A-1.2 Purpose

The purpose of this subchapter is to provide detailed procedures, standards, and criteria for the administration and public use of natural areas and the Natural Areas System in order to protect and preserve the natural and ecological resources thereon for present and future generations.

N.J. Admin. Code § 7:5A-1.3 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Administering agency" means the Division of Parks and Forestry or Fish and Wildlife, in the Department, or any other group or organization managing land designated as part of the Natural Areas System.

"Commissioner" means the Commissioner of the Department or his or her designated representative.

"Conservation easement" means an interest in land less than fee simple absolute, stated in the form of a right, restriction, easement, covenant, or condition, in any deed, will or other instrument, other than a lease, executed by or on behalf of the person vested with a greater interest therein, appropriate to retaining land or water areas predominantly in their natural, scenic, open or wooded condition, or for conservation of suitable habitat for plants or animals.

"Construction of new trails" means the physical creation or alteration of a trail corridor or path to serve a function not formerly served by the trail, path or underlying land. Creation of the trail corridor or path can be undertaken by a variety of means including cutting, clearing or removing vegetation, and alteration of the ground surface to encourage trail use.

"Department" means the New Jersey Department of Environmental Protection.

"Designation study" means a written report or analysis of an area or portion of an area listed on the Register that assesses the appropriateness for designation of that area to the Natural Areas System.

"Division" means the Division of Parks and Forestry within the Department.

"Ecological community" means an interacting assemblage of plants, animals and other organisms, their physical environment and the natural processes that affect them.

"Interim classification" means a category reflecting the type of habitat management permitted within the natural area prior to approval of a management plan.

"Interim management practice" means any use, activity, or management conducted within a natural area prior to approval of a management plan.

"Interpretive structures" means those structures and/or trails the sole purpose of which is to support the interpretation of natural features or the education of visitors and users of a natural area. Such structures may include, but are not limited to, buildings, blinds, kiosks, wayside trail exhibits, and signs.

"Invasive species" means nonindigenous plant and animal species that have been intentionally or accidentally introduced into habitats and geographical areas outside of their natural geographical range and that have the ability to reproduce and spread, thereby threatening native biological diversity and/or the integrity of natural ecosystems.

"Maintenance of existing trails" means routine activities conducted on an existing trail corridor or path to maintain the intended use of that trail. Maintenance may include, but not be limited to, signing or blazing, routine vegetation control such as trimming or brushing, and trail path grooming, provided that the vegetation control and trail grooming does not enlarge the existing width of the ground surface used as a trail.

"Management objective" means the stated purpose or goal of designating an area to the Natural Areas System to which management of the area is to be directed.

"Natural area" means an area of land or water, owned in fee simple or held as a conservation easement by the Department, which has retained its natural character, although not necessarily completely undisturbed, or having rare or vanishing species of plant and animal life, or having similar features of interest, which are worthy of preservation for present and future residents of the State.

"Natural Areas Council", hereafter "Council", means that body consisting of seven members including the Administrator of the Office of Natural Lands Management and six members of the public appointed by the Governor in accordance with N.J.S.A. 13:1B-15.7.

"Natural Areas System," hereafter "System," means those lands designated as natural areas pursuant to this subchapter, identified at N.J.A.C. 7:5A-1.13, and consisting of lands that serve as habitat for rare plant species or animal species, or both, or ecological communities representative of the State of New Jersey or the nation.

"Natural Heritage Database" means the manual and computerized file maintained by the Division that includes continuously updated information on the location and status of rare plant and animal species and ecological communities in New Jersey. Information on the Natural Heritage Database is available at http:// ://www.nj.gov/dep/parksandforestry/natural/heritage/index.htme.

"Prescribed burning" means the open burning of plant material under such conditions that the fire is confined to a predetermined area and accomplishes the environmentally beneficial objectives of habitat management and prevention or control of wildfires.

"Preservation" means any measures, including no action at all, which are required in order to avoid injury, destruction or decay of a natural resource feature within a Natural Area or otherwise maintain or protect those features indicated in the management objective.

"Rare species habitat" means habitat for any plant and/or animal species listed, proposed or of candidate status by the Federal government as endangered or threatened throughout the United States pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq., and its implementing regulations, 50 CFR §§ 17.11 and 17.12; any plant species listed as endangered or as a species of concern pursuant to N.J.S.A. 13:1B-15.1 51 et seq. and its implementing rules, N.J.A.C. 7:5C; any animal species listed as endangered, threatened or as a priority wildlife species pursuant to N.J.S.A. 23:2A-1 et seq. and its implementing rules, N.J.A.C. 7:25-4; and any rare plant and/or animal species and/or ecological community recorded in the Natural Heritage Database.

"Register" means the registry, required by N.J.S.A. 13:1B-15.12a6, of all lands, public and private, which are suitable for inclusion within the System. See also N.J.A.C. 7:5A-1.4.

"Register site summary" means a written report, on file with the Division, summarizing site-specific information on the suitability for inclusion of a site on the Register, and containing a map indicating the boundary of the site.

"Right-of-way" means a less-than-fee interest in property held by another over which the Department has no control, such as, but not limited to, use of property for pipelines, transmission lines, and roads.

"State" means the State of New Jersey, or any of the departments or agencies in the executive branch of government with the lawful authority to engage in contracting.

"Timber" means trees sold, removed or destroyed for commercial, non-ecological purposes. Timber does not include trees harvested or removed solely for the purpose of furthering the management objective of a Natural Area.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• Added definition for "preservation" and "register site summary"; deleted "primary classification".
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• Inserted "Construction of new trails" and "Maintenance of existing trails"; deleted "Existing use of activity"; and in "Natural Areas System", substituted "natural communities representative of the State of New Jersey or the nation" for "are representative of natural communities" at the end.
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Rewrote the section.

N.J. Admin. Code § 7:5A-1.4 Register of Natural Areas

(a) The Register of Natural Areas, hereinafter "Register", is a list of sites which serves as:

1. The official recognition of the site's important natural features which are worthy of preservation by the property owner; and

2. The list of sites from which to draw new areas for designation to the System.

(b) Listing on the Register does not, in itself, alter land use or ownership, nor does it impose any regulatory authority.

(c) Any individual or organization may suggest that a site be included on the Register by submitting a Register site summary to the Department or the Council. Potential sites may also be studied and Register site summaries presented to the Council by the Department's Office of Natural Lands Management.

(d) Upon review of the Register site summary by the Council, and subsequent to the recommendation of the Council, the Commissioner may approve the listing of a site on the Register. The site must include rare species habitat or at least one ecological community, as defined at N.J.A.C. 7:5A-1.3.

(e) The Division shall maintain the Register together with copies of the Register site summary.

(f) The Commissioner may remove a site from the Register upon a finding and recommendation by the Council that the site no longer satisfies the criteria enumerated in (d) above.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• Clarifying language added regarding the procedure for documenting the suitability of a site for inclusion on the Natural Areas Register and for including a site on the Natural Areas Register.
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• In (d)2, added a reference to the nation at the end of the first sentence; deleted former (e); and recodified former (f) and (g) as (e) and (f).
• Public Notice: Listing of Swartswood Sinkhole Ponds.
• See: 32 New Jersey Register 116(b).
• Public Notice: Listing of West Branch Wading River on the Register of Natural Areas.
• See: 35 New Jersey Register 1308(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• In (c), substituted "Department" for "Commissioner"; rewrote (d); in (f), substituted "The" for "A site may be removed from the Register by the" at the beginning of the paragraph, inserted "may remove a site from the Register" following "Commissioner", deleted the last sentence.

N.J. Admin. Code § 7:5A-1.5 Natural Areas Council

(a) The Natural Areas Council shall advise the Commissioner in matters relating to the administration of the Natural Areas Act (N.J.S.A. 13:1B-15.4 et seq.) and the Natural Areas System Act (N.J.S.A. 13:1B-15.12a et seq.). The specific functions of the Council include, but are not limited to, the following:

1. Recommending sites to be studied by the Department for possible listing on the Register;

2. Evaluating studies conducted by the Department and providing a recommendation to the Commissioner for listing on the Register;

3. Evaluating those lands owned in fee or easement by the State that are listed on the Register, and recommending to the Commissioner their inclusion within the System;

4. Evaluating management plans prepared by the Department and recommending to the Commissioner revisions, or approval, or both;

5. Evaluating rules developed by the Department for implementation of the acts; and

6. Recommending for acquisition specific lands or interests in lands that are suitable for designation to the Natural Areas System.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• At (a), corrected N.J.S.A. cite.
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• In (a), deleted former 3, and recodified former 4 through 6 as 3 through 5; and added (b).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Rewrote the section.

N.J. Admin. Code § 7:5A-1.6 Natural Areas designation

(a) To qualify for designation to the System, a site must be:

1. Listed on the Register; and

2. Wholly or partially owned in fee or held as a conservation easement by the State.

(b) Upon request of the Commissioner or a majority vote of the Council, the Department shall undertake a study of a Register site to assess appropriateness of designation as a natural area. This designation study shall include, but not be limited to, the following analyses:

1. The overall quality of the site including:

i. The inherent ability to perpetuate the feature(s) of concern;

ii. The size of the site necessary to perpetuate the feature(s) of concern;

iii. The size of the population(s) at the site sufficient to assure perpetuation of biotic features of concern; and

iv. The integrity of the site in terms of its ability to significantly illustrate the feature(s) of concern;

2. The significant diversity of biotic features and the number of plant or animal species, or both, per community;

3. The relative scarcity or uniqueness of plant and animal species, community types, and wildlife habitats;

4. The presence and quality of surrounding buffer areas to provide protection and insure the integrity of the site;

5. The degree of disturbance or potential threat, directly or indirectly, from one or more of the following:

i. Highways, roads, or railroads;

ii. Housing or commercial development;

iii. Industrial use;

iv. Military use;

v. Utility lines or rights-of-way;

vi. Visitor use;

vii. Active recreational use;

viii. Flooding or erosion; and

ix. Invasive species;

6. The ability of an administering agency to adequately manage the site or enter into a management agreement with others, to preserve the integrity of the natural features including such factors as cost, usability, boundaries, and accessibility;

7. The degree of threat to the public health, safety, and welfare which may be encountered as a result of terminating existing uses or activities; and

8. The identification of preliminary boundaries of the area in the form of a site map to be refined upon approval of a management plan.

(c) Upon review of the designation study and comments from the administering agency, the Council shall submit a recommendation to the Commissioner for designation of the land in question to the System. The Council's recommendation shall include:

1. A management objective for the area;

2. A summary of qualifications of the site related to quality, diversity, and scarcity of the feature or species and potential management practices which may be necessary to ensure preservation; and

3. An interim classification for the area as provided in N.J.A.C. 7:5A-1.7.

(d) If the Commissioner agrees with the Council's recommendation, the Department shall publish a notice of public hearing in the New Jersey Register and hold a public hearing on the proposed designation, in accordance with N.J.S.A. 13:1B-15.12a4.

(e) The Commissioner shall review the comments from the public, if any, and shall take the following action on the proposed designation:

1. Approve, subject to Gubernatorial concurrence;

2. Make changes to the proposed designation in consultation with the Council and approve subject to Gubernatorial concurrence; or

3. Request the Council's reconsideration of the recommendation for designation.

(f) The Department shall publish in the New Jersey Register a notice of administrative change revising N.J.A.C. 7:5A-1.13 each time a natural area or portion of a natural area is designated in accordance with this section.

(g) The process set forth at (c) through (f) above for designation of a natural area to the System shall apply when a natural area, or portion of a natural area, is removed from the System.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 N.J.R. 1985(b), 24 N.J.R. 581(b).
• Revised to clarify that a site held by the Department under a conservation easement is eligible for designation to the System.
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 N.J.R. 1350(a), 25 N.J.R. 3150(a).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 N.J.R. 897(a), 30 N.J.R. 2207(a).
• In (b), deleted former 8, and recodified former 9 as 8.
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 N.J.R. 3008(a), 36 N.J.R. 3463(a), 36 N.J.R. 5670(a).

N.J. Admin. Code § 7:5A-1.7 Classification of natural areas

(a) Interim classification of natural areas shall be related to the management objective of the area.

(b) Upon designation to the System, each natural area shall be categorized into one of the following interim classifications:

1. Ecological reserve: an area managed to allow natural processes to proceed with little or no habitat manipulation; or

2. Conservation preserve: an area where habitat manipulation is permissible in order to preserve a plant or animal species, community type, or ecosystem.

(c) Upon approval of a management plan for a natural area, the interim classification assigned to the area shall be superseded by the specific management practices prescribed by the management plan.

(d) As part of an approved management plan, specified zones within the natural area may be categorized as buffer areas. A buffer area serves the purpose of protecting ecological reserves and conservation preserves.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• New (c) and (d) added to explain the designation and purpose of buffer areas within natural areas.
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Substituted "approval" for "adoption" throughout.

N.J. Admin. Code § 7:5A-1.8 Natural area management plans

(a) Management and uses of natural areas shall be subject to:

1. Interim management practices conducted by the administering agency as provided in N.J.A.C. 7:5A-1.9;

2. Management practices requiring approval by the Commissioner as provided in N.J.A.C. 7:5A-1.9; or

3. A management plan approved by the Commissioner specifying uses, activities, or management.

(b) The Department, with the cooperation of the administering agency, shall prepare a management plan for each natural area in the System. The primary purpose of a management plan is to describe the natural features of the area and prescribe management practices and public uses to ensure preservation in accordance with the management objective of the natural area.

(c) An approved management plan may supersede the interim management practices listed at N.J.A.C. 7:5A-1.9, if the Commissioner determines through his or her approval of the management plan that the practices in the management plan more specifically address the requirements of the management objective for that area. Any interim management practice listed at N.J.A.C. 7:5A-1.9 and not specifically addressed or superseded by the approved management plan for the area shall remain in effect in a natural area following approval of the management plan.

(d) Each management plan shall include, but not be limited to:

1. A site description identifying the physical features, natural communities, and species composition of the area;

2. A description of the existing uses and activities;

3. A description of existing rights-of-way which are to be expected from the boundaries;

4. Any management practices that will contribute towards preservation in accordance with the management objective;

5. An analysis of public uses and their impact on the natural area including:

i. Ecological research and study;

ii. Public interpretation, observation, and study of the natural communities, species, and ecosystems; and

iii. Recreational activities; and

6. An evaluation of the current boundaries and changes, if necessary, to achieve preservation in accordance with the management objective.

(e) A draft management plan shall be reviewed by the administering agency and the Department prior to submission to the Council.

(f) The Council shall review the draft management plan and the comments of the administering agency at a meeting for which notice has been provided in the New Jersey Register. Based on the meeting, the Council shall request additional information or recommend to the Commissioner that the plan be approved.

(g) If the administering agency disagrees with the recommendation of the Council, the recommendations of each shall be forwarded to the Commissioner for a final decision.

(h) The Commissioner shall review the draft management plan, the recommendation of the Council, and the recommendation, if any, of the administering agency and shall take the following action on the draft management plan:

1. Approve the draft management plan as the management plan for the natural area; or

2. Request the Council and the Division's reconsideration of the draft management plan, after which the Council and the Division may resubmit the draft management plan for the Commissioner's approval.

(i) An approved management plan for a natural area may be revised subject to the following:

1. The Council shall review any proposed revisions to an approved management plan, and the comments of the administering agency on the proposed revisions, at a meeting for which notice has been provided in the New Jersey Register. Based on the meeting, the Council shall request additional information or recommend to the Commissioner that the proposed revisions be approved.

2. If the administering agency disagrees with the recommendation of the Council, the recommendations of each shall be forwarded to the Commissioner for a final decision.

3. The Commissioner shall review the revised management plan, the recommendation of the Council, and the recommendation, if any, of the administering agency, and shall take the following action on the revised management plan:

i. Approve the revised management plan as the management plan for the natural area; or

ii. Request the Council and the Department's reconsideration of the revised management plan, after which the Council and the Division may resubmit the revised management plan for the Commissioner's approval.

History

• Public notice: Allamuchy Natural Area Management Plan approved by Commissioner on May 24, 1989.
• See: 21 New Jersey Register 1748(e).
• Public Notice: Management plan for the Swimming River Natural Area.
• See: 23 New Jersey Register 3180(c).
• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• New (c) added and (e) has been modified to clarify the relationship of an adopted management plan for a natural area to the interim management practices; new (h) and (i) added to establish a procedure for adopting a management plan for a natural area; recodification.
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Rewrote the section.

N.J. Admin. Code § 7:5A-1.9 Interim management practices

(a) Interim management practices shall be implemented by the administering agency, provided that:

1. The practice will have no direct or indirect adverse impact on natural features of concern and will further the management objective of the natural area;

2. Approval of the Commissioner is not required by provision elsewhere in this subchapter; and

3. The practice is consistent with terms of any conservation easement held by the Department.

(b) Interim management practices listed at (e) or (f) below that require the approval of the Commissioner shall first be submitted to the Council for its review and recommendation.

(c) Upon finding that an interim management practice listed below at (e) or (f) would be detrimental to achieving a specific management objective, the Council shall recommend to the Commissioner the substitution of a more appropriate interim management practice. Should the Commissioner concur with the recommendation of the Council, the Commissioner may approve substitution of a more appropriate interim management practice.

(d) Where there are conflicts between general practices described below at (e) and practices specific to a natural area classification described below at (f), the latter shall apply.

(e) The following interim management practices apply generally to all natural areas upon designation to the System unless and until superseded by the provisions of an approved management plan:

1. Natural area boundaries shall be made clearly evident by posting signs at a maximum density of 10 signs per mile; entrance points shall be posted to indicate to users that they are entering a natural area; boundary signs shall be of a standard size and format as provided by the Department;

2. Boundary fences that are needed to protect the natural area may be installed provided the fence shall not have a detrimental effect on the movement of wildlife, or other natural conditions;

3. Vehicular access lanes may be maintained within a natural area but may not be enlarged in any manner except upon approval of the Commissioner.

4. Existing firebreaks within a natural area may be maintained for public health and safety purposes; temporary firebreaks made by mowing, raking, plowing or wetting, may be used in conjunction with prescribed burning for habitat management;

5. Existing structures may be maintained in a natural area; new structures and enlargement of existing structures may be undertaken upon approval by the Commissioner, provided the structures directly or indirectly contribute to the management objective; new structures, of a temporary nature, may be constructed for research purposes in accordance with N.J.A.C. 7:5A-1.10;

6. No measures, such as cutting of grass, brush, or other vegetation, thinning of trees, removal of fallen logs, opening of scenic vistas, or planting, shall be taken to alter natural processes or features for the purpose of enhancing the beauty or neatness of a natural area;

7. No measures, such as control of annoying or biting insects, shall be taken solely to alleviate nuisances or annoyances to visitors of natural area, except when approved by the Commissioner;

8. Except as otherwise provided in this section, there shall be no introduction, removal or consumptive use of any material, product, or object to or from a natural area; prohibited activities include grazing by domestic animals, farming, gathering of plants or parts thereof, mining or quarrying, and dumping, burying, or spreading of garbage, trash, or other materials; structures or materials may be removed as follows:

i. Old interior fences may be removed, giving consideration to leaving posts to mark boundaries between former land uses;

ii. Rubbish or any other waste material may be removed; and

iii. Structures having no historic, scientific or habitat value may be demolished and removed unless such structures are deemed essential for administrative or interpretive purposes;

9. Water levels within a natural area shall not be altered except to restore water levels which have been altered due to sudden natural phenomena or man-induced conditions off-site, but routine repairs to existing water control structures may be undertaken;

10. All wildfires shall be brought under control; after a fire within a natural area, there shall be no cleanup or replanting except as approved by the Commissioner to achieve the management objective or for reasons of health and safety;

11. Prescribed burning, to eliminate safety hazards and to manage habitat, may be conducted upon approval of a proposal for prescribed burning by the Commissioner; use of vehicles and equipment shall be specified in the proposal for prescribed burning;

12. Habitat manipulation or restoration may be undertaken if preservation of a particular habitat type or species of native flora or fauna is included in the management objective of the natural area and upon approval by the Commissioner of a specific habitat manipulation or restoration plan;

13. Gypsy moth control activities may be implemented upon a determination by the State Forester that egg mass counts and prior year defoliation will result in severe tree mortality without intervention, and after approval of a gypsy moth control plan by the Commissioner; to the extent practicable, biological controls, rather than chemical means, shall be used to control gypsy moths;

14. There shall be no physical manipulation of a natural area or application of chemicals known as adulticides for the purpose of controlling mosquitoes; the application of larvicides may be permitted in salt marshes only and only as follows:

i. The application of Bacillus thuringensis var.israeliensis (BTI) may be initiated by mosquito control agency anytime; and

ii. The application of other larvicides may be initiated upon approval by the Commissioner of a specific mosquito control plan submitted by a mosquito control agency; the plan shall identify the specific area where an application will be made, the types and amount of larvicide to be applied, the need for the application, and the reason why BTI cannot be used for this application;

15. Control of invasive species by biological, mechanical, or chemical methods may be performed upon approval of an invasive species control plan by the Commissioner;

16. Research activities and the collection of specimens may only be conducted in accordance with N.J.A.C. 7:5A-1.10 and upon approval of the administering agency;

17. The introduction of invasive species is prohibited;

18. The sale, removal, or destruction of "timber" as defined at N.J.A.C. 7:5A-1.3 is prohibited; and

19. Public use of natural areas shall be allowed only to the extent and in a manner that will not impair natural features; the administering agency may restrict access and use as necessary to protect the natural area. The following are permissible public uses of natural areas:

i. Hunting, trapping, and fishing are permitted in accordance with N.J.A.C. 7:25-5 and 7:25-6; except for the stocking of fish and game, habitats may not be manipulated for the purpose of enhancing hunting, trapping, or fishing;

ii. Occasional camping along trails, boating, including motorized boating, and swimming may be permitted in specified locations of natural areas in accordance with N.J.A.C. 7:2-2, 7:2-5, 7:2-7, 7:2-8, and 7:25-2, and are further limited as follows:

(1) No permanent structures may be erected;

(2) No motorized methods of camping are permitted;

(3) Trailside shelters of the type called lean-tos are permitted, but there may not be two such shelters within three miles of each other; and

iii. Trails may be constructed and maintained as follows:

(1) Construction of new trails may be initiated subsequent to approval of a trail plan by the Commissioner. Maintenance of existing trails may be conducted upon approval of the administering agency;

(2) Rare plants or other significant features, the protection or preservation of which is consistent with the management objective of a natural area, may not be removed for the purpose of maintaining existing or constructing new trails;

(3) To the extent possible, natural materials shall be used on and along trails; and

(4) Trail blazes may be used to mark trails; and

iv. All pets shall be kept caged or leashed and under immediate control of the owner except that dogs used while legally hunting shall be exempt from the leashing requirement.

(f) The following interim management practices, unless superseded by an approved management plan, apply to the appropriate specified natural area classifications:

1. Interpretive structures may be installed except within ecological reserves;

2. Existing vehicular access lanes may not be enlarged in any manner within an ecological reserve;

3. New vehicular access lanes may be constructed only within buffer areas and upon approval by the Commissioner;

4. The alteration of natural processes or features for the purpose of enhancing public use of the natural area may be conducted by the administering agency only within buffer areas; and

5. The following management practices shall not be permitted within ecological reserves:

i. Construction of new, existing, or temporary firebreaks;

ii. Construction of new trails;

iii. Alteration or restoration of water levels;

iv. Prescribed burning;

v. Erosion control measures; and

vi. Manipulation of vegetation and wildlife habitats.

History

• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• Consolidated (f)5 and (e)5 to clarify that construction and alteration of structures located within natural areas may be undertaken as an interim management practice only upon approval by the Commissioner, and to expand the scope of this interim management practice from buffer areas to all natural areas; (e)12 revised to specify that habitat manipulation within a natural area as an interim management practice requires approval by the Commissioner of a specific habitat manipulation plan.
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• In (a), added "and will further the management objective of the natural area" at the end of 1, deleted former 2, and recodified former 3 and 4 as 2 and 3; and rewrote (e).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Rewrote (e) and (f).

N.J. Admin. Code § 7:5A-1.10 Procedures for conducting research and collecting specimens

(a) In accordance with this section, research or collection within a natural area may be conducted by individuals, groups, or governmental agencies, who, in the opinion of the administering agency, are qualified to conduct such activities and which, in the opinion of the administering agency, will not have a detrimental effect on the natural features of the area.

(b) A written proposal for research or collection activities within a natural area shall be submitted to the administering agency. The submission shall contain:

1. The name, address, email address, telephone number and emergency contact information, position, and professional qualifications of the applicant;

2. The purpose and theme of the research or collecting and benefits to be derived therefrom;

3. The specific methods and procedures for carrying out the activity;

4. The location of the research sites;

5. The duration of the project, the frequency of visitation, and the method of access;

6. The name(s) and number of participants involved, as well as the email address, telephone number and emergency contact information for each participant; and

7. Any anticipated direct and indirect impacts on the natural area that may result from implementation of the project.

(c) The administering agency shall review the submission, consulting with the Office of Natural Lands Management and other offices in the Department, as needed, and shall approve, conditionally approve, or disapprove the application for research or collection. The decision shall be based on:

1. The relationship of the activity to the management objective of the area and the benefits to be derived;

2. The ability and competence of the applicant to conduct the activity; and

3. The approved activity having minimal adverse impact on the natural area and the administering agency's ability to adequately manage the area while subject to research and collection.

(d) Interim and final reports and publications resulting from the research or collection, as specified in the approval, shall be submitted to the administering agency and secretary of the Council.

History

• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• In (c), inserted ", consulting with the Office of Natural Lands Management or other offices in the Division, as needed," in the introductory paragraph.
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• In (b), rewrote 1 and 6: in (c), substituted "and" for "or following "the Office of Natural Lands Management", "Department" for "Division" following "other offices in the".

N.J. Admin. Code § 7:5A-1.11 Enforcement of rules

(a) Remedies for the violation of the provisions of this chapter applicable to those State-owned or leased lands, waters and facilities administered by the Department, other than wildlife management areas or reservoir lands, shall be as provided at N.J.S.A. 13:1L-23.

(b) Penalties for the violation of the provisions of this chapter applicable to State-owned or leased lands under the control of the Division of Fish and Wildlife shall be as provided at N.J.S.A. 23:7-9.

History

• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).

N.J. Admin. Code § 7:5A-1.12 Boundaries of natural areas

(a) The Department shall maintain, and make available to the administering agency and members of the public, general location maps of each natural area in the System.

(b) All boundaries of natural areas shall conform with physical features identifiable in the field or the edge of State ownership of the natural area.

(c) Persons wishing to obtain a list of current boundaries of designated natural areas may contact the Office of Natural Lands Management as provided at N.J.A.C. 7:5A-1.14.

History

• New Rule: R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 New Jersey Register 1350(a), 25 New Jersey Register 3150(a).
• Public Notice: Proposed boundary change in Farny Natural Area.
• See: 35 New Jersey Register 4133(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• In (a), substituted "Department" for "Division" following "The"; added a new (c) and deleted former (c) through (j).

N.J. Admin. Code § 7:5A-1.13 Natural Areas System

(a) The designated components of the Natural Areas System are as follows:

1. Absegami Natural Area:

i. Location: Bass River State Forest, Bass River Township, Burlington County;

ii. Management Objective: preservation of Atlantic white cedar and pine/oak communities, southern swamp habitat, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Bass River State Forest;

2. Allamuchy Natural Area:

i. Location: Allamuchy State Park, Allamuchy Township, Warren County, and Byram Township, Sussex County;

ii. Management Objective: preservation of a hardwood forest of significant size and successional fields and protection of a rare plant community;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Hopatcong State Park;

3. Batsto Natural Area:

i. Location: Wharton State Forest, Mullica Township and Hammonton Town, Atlantic County, and Washington and Shamong Townships, Burlington County;

ii. Management Objective: preservation of pitch pine lowland, Atlantic white cedar swamp, Pine Barrens bog, mixed pine-shrub oak barrens, savanna and other habitats, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Wharton State Forest;

4. Bearfort Mountain Natural Area:

i. Location: Wawayanda State Park, West Milford Township, Passaic County;

ii. Management Objective: preservation of scrub oak and hardwood swamp forests, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Wawayanda State Park;

5. Bear Swamp East Natural Area:

i. Location: Downe Township, Cumberland County;

ii. Management Objective: preservation of ecological communities and relationships, management of bald eagle nesting site and other known and potential endangered species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Fish and Wildlife, through Millville Wildlife Management Area;

6. Bennett Bogs Natural Area:

i. Location: Lower Township, Cape May County;

ii. Management Objective: Preservation of a rare coastal plain intermittent pond ecological community which provides habitat for numerous rare plant and animal species;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: New Jersey Natural Lands Trust;

7. Black River Natural Area:

i. Location: Black River Wildlife Management Area, Chester and Washington Townships, Morris County;

ii. Management Objective: preservation of mesic, marsh, floodplain habitat, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Fish and Wildlife, through Whittingham Wildlife Management Area;

8. Bull's Island Natural Area:

i. Location: Bull's Island Recreation Area, Delaware Township, Hunterdon County;

ii. Management Objective: preservation of a northern floodplain habitat, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Delaware and Raritan Canal State Park;

9. Bursch Sugar Maple Natural Area:

i. Location: Hope and Knowlton Townships, Warren County;

ii. Management Objective: preservation of a northeastern hardwoods forest, and sugar maple/mixed hardwood community;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Jenny Jump State Forest;

10. Cape May Point Natural Area:

i. Location: Cape May Point State Park, Cape May Point Borough and Lower Township, Cape May County;

ii. Management Objective: preservation of freshwater marsh behind a coastal dune, habitat diversity for migratory birds, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Cape May Point State Park;

11. Cape May Wetlands Natural Area:

i. Location: Avalon Borough, Dennis and Middle Townships, Cape May County;

ii. Management Objective: preservation of tidal salt marsh ecosystem and rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Fish and Wildlife, through Cape May Coastal Wetlands Wildlife Management Area;

12. Cedar Swamp Natural Area:

i. Location: Brendan T. Byrne State Forest, Woodland Township, Burlington County;

ii. Management Objective: preservation of southern swamp and floodplain habitat, Atlantic white cedar, red maple and pine/oak forest communities, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Brendan T. Byrne State Forest;

13. Cheesequake Natural Area:

i. Location: Cheesequake State Park, Old Bridge Township, Middlesex County;

ii. Management Objective: preservation of habitat diversity including hardwood forest, cedar swamp, mature white pine stand, freshwater swamp, Pine Barren outlier and salt marsh, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Cheesequake State Park;

14. Cook Natural Area:

i. Location: South Brunswick Township, Middlesex County;

ii. Management Objective: preservation of freshwater nontidal flood plain forest habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Delaware and Raritan Canal State Park;

15. Dryden Kuser Natural Area:

i. Location: High Point State Park, Montague and Wantage Townships, Sussex County;

ii. Management Objective: preservation of an inland high elevation Atlantic white cedar swamp, chestnut oak forest and associated forest communities, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through High Point State Park;

16. Dunnfield Creek Natural Area:

i. Location: Worthington State Forest, Pahaquarry Township, Warren County;

ii. Management Objective: preservation of a hemlock ravine, chestnut oak forest, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Worthington State Forest;

17. East Plains Natural Area:

i. Location: Stafford Forge Wildlife Management Area, Little Egg Harbor, Stafford and Eagleswood Townships, Ocean County;

ii. Management Objective: Preservation and management of a globally rare dwarf pine plains community in the East Plains, a large occurrence of the state endangered broom crowberry, as well as other rare plant and animal species;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Fish and Wildlife, through Stafford Forge Wildlife Management Area;

18. Farny Natural Area:

i. Location: Farny State Park, Rockaway Township, Morris County;

ii. Management Objective: preservation of northern mixed oak-hardwood forest, hardwood swamp forest, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Ringwood State Park;

19. Great Bay Natural Area:

i. Location: Little Egg Harbor Township, Ocean County;

ii. Management Objective: preservation of tidal salt marsh ecosystem and rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Fish and Wildlife, through Assunpink Wildlife Management Area;

20. Hacklebarney Natural Area:

i. Location: Hacklebarney State Park, Chester and Washington Townships, Morris County, Tewksbury Township, Hunterdon County and Bedminster Township, Somerset County;

ii. Management Objective: preservation of a river ravine and northern hemlock/mixed hardwood forest, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Spruce Run Recreation Area;

21. Hirst Ponds Natural Area:

i. Location: Galloway Township, Atlantic County;

ii. Management Objective: Preservation of rare coastal plain intermittent pond ecological community which includes occurrences of the globally critically imperiled and State endangered plant Hirst Brothers' panic grass and numerous other rare plant and animal species;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: New Jersey Natural Lands Trust;

22. Island Beach Northern Natural Area:

i. Location: Island Beach State Park, Berkeley Township, Ocean County;

ii. Management Objective: preservation of barrier island dune system, plant community associations, and rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Island Beach State Park;

23. Island Beach Southern Natural Area:

i. Location: Island Beach State Park, Ocean and Berkeley Townships, Ocean County;

ii. Management Objective: preservation of barrier island dune system, saltwater marsh, freshwater bogs, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Island Beach State Park;

24. Johnsonburg Natural Area:

i. Location: Frelinghuysen Township, Warren County;

ii. Management Objective: preservation of a mixed hardwood forest;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Jenny Jump State Forest;

25. Ken Lockwood Gorge Natural Area:

i. Location: Ken Lockwood Gorge Wildlife Management Area, Lebanon Township, Hunterdon County;

ii. Management Objective: preservation of hemlock mixed hardwood forest with highly varied understory, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Fish and Wildlife, through Whittingham Wildlife Management Area;

26. Manahawkin Natural Area:

i. Location: Manahawkin Wildlife Management Area, Stafford Township, Ocean County;

ii. Management Objective: preservation of a mature bottomland hardwood forest, and rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Fish and Wildlife, through Assunpink Wildlife Management Area;

27. North Brigantine Natural Area:

i. Location: City of Brigantine, Atlantic County;

ii. Management Objective: preservation of salt marsh habitat, coastal dune, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Bass River State Forest;

28. Osmun Forest Natural Area:

i. Location: Knowlton Township, Warren County;

ii. Management Objective: preservation of a northeastern mixed hardwood forest;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Jenny Jump State Forest;

29. Oswego River Natural Area:

i. Location: Wharton State Forest, Washington and Bass River Townships, Burlington County;

ii. Management Objective: preservation of hardwood swamp, pitch pine lowland, pine-oak, Atlantic white cedar, and bog communities, which serve as rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Wharton State Forest;

30. Parvin Natural Area:

i. Location: Parvin State Park, Pittsgrove Township, Salem County;

ii. Management Objective: preservation of mixed oak and pine forest on the Pine Barrens fringe with a diversity of plant and animal species, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Parvin State Park;

31. Ramapo Lake Natural Area:

i. Location: Ramapo Mountain State Forest, Wanaque and Ringwood Boroughs, Passaic County, and Oakland Borough, Bergen County;

ii. Management Objective: preservation of northern upland habitats and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Ringwood State Park;

32. Rancocas Natural Area:

i. Location: Rancocas State Park, Westampton Township, Burlington County;

ii. Management Objective: preservation of freshwater marsh and southern floodplain habitat, including one of the largest stands of wild rice in the State;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Brendan T. Byrne State Forest;

33. Readington Natural Area:

i. Location: Readington Township, Hunterdon County;

ii. Management Objective: preservation of mixed hardwood forest, floodplain habitat and early stages of secondary field succession;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: New Jersey Natural Lands Trust;

34. Richard J. Sullivan Natural Area:

i. Location: Liberty State Park, Jersey City, Hudson County;

ii. Management Objective: preservation of a salt marsh in upper New York Bay and created uplands;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Liberty State Park;

35. Strathmere Natural Area:

i. Location: Corson's Inlet State Park, Upper Township, Cape May County;

ii. Management Objective: preservation of a dune habitat, plant community associations, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Belleplain State Forest;

36. Sunfish Pond Natural Area:

i. Location: Worthington State Forest, Pahaquarry Township, Warren County;

ii. Management Objective: preservation of a lake of glacial origin surrounded by a hardwood forest, and rare species habitat;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Worthington State Forest;

37. Swan Point Natural Area:

i. Location: Brick Township, Ocean County;

ii. Management Objective: preservation of tidal salt marsh ecosystem and Atlantic white cedar swamp;

iii. Interim Classification: ecological reserve;

iv. Administering Agency: Division of Parks and Forestry, through Island Beach State Park;

38. Swartswood Natural Area:

i. Location: Swartswood State Park, Stillwater and Hampton Townships, Sussex County;

ii. Management Objective: preservation of rare species and plant communities in sinkhole pond ecosystems;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Swartswood State Park.

39. Swimming River Natural Area:

i. Location: Borough of Tinton Falls, Monmouth County;

ii. Management Objective: preservation of habitat diversity including freshwater marsh, saltwater marsh, woodlands, fields and estuary;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Allaire State Park;

40. Tillman Ravine Natural Area:

i. Location: Stokes State Forest, Walpack and Sandyston Townships, Sussex County;

ii. Management Objective: preservation of a hemlock ravine and associated geologic forms, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Stokes State Forest;

41. Troy Meadows Natural Area:

i. Location: East Hanover and Parsippany-Troy Hills Townships, Morris County;

ii. Management Objective: preservation of freshwater marsh habitat northern swamp and floodplain habitat, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Ringwood State Park;

42. Washington Crossing Natural Area:

i. Location: Washington Crossing State Park, Hopewell Township, Mercer County;

ii. Management Objective: preservation of natural succession and mixed hardwood forests, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Washington Crossing State Park;

43. Wawayanda Hemlock Ravine Natural Area:

i. Location: Wawayanda State Park, Vernon Township, Sussex County;

ii. Management Objective: preservation of hemlock/mixed hardwood forest and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Wawayanda State Park;

44. Wawayanda Swamp Natural Area:

i. Location: Wawayanda State Park, Vernon Township, Sussex County, and West Milford Township, Passaic County;

ii. Management Objective: preservation of extensive northern swamp and forest habitats, glacially formed, spring-fed pond, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Wawayanda State Park;

45. West Branch Wading River Natural Area:

i. Location: Washington Township, Burlington County;

ii. Management Objective: Protection and management of globally rare pine barrens riverside savanna community, and large occurrences of the globally rare and State endangered plant bog asphodel, as well as other rare plant and animal species;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Wharton State Forest;

46. West Plains Natural Area:

i. Location: Bass River State Forest, Woodland Township, Burlington County;

ii. Management Objective: preservation of globally rare ecological communities within the West Plains Fireshed, including dwarf pine plains, pitch pine-shrub oak barrens, pitch pine-reedgrass savanna and hydric pine plains, as well as numerous rare plant and animal species;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Parks and Forestry, through Bass River State Forest; and

47. Whittingham Natural Area:

i. Location: Whittingham Wildlife Management Area, Fredon and Green Townships, Sussex County;

ii. Management Objective: preservation of a northern swamp and floodplain forest on a limestone cliff, rare and exemplary natural communities, and rare species habitat;

iii. Interim Classification: conservation preserve;

iv. Administering Agency: Division of Fish and Wildlife, through Whittingham Wildlife Management Area.

History

• Amended by R.1989 d.566, effective 11/6/1989.
• See: 21 N.J.R. 1480(b), 21 N.J.R. 3482(b).
• New (c)41, West Pine Plains Natural Area, added; old (c)41 renumbered as 42 with no change in text.
• Amended by R.1992 d.77, effective 2/18/1992.
• See: 23 N.J.R. 1985(b), 24 N.J.R. 581(b).
• Recodified from N.J.A.C. 7:5A-1.12; deleted (a) and (b), recodified (c) as (a); certain designations changed.
• Public Notice: Management Plan and Boundary Revision for Cedar Swamp Natural Area.
• See: 25 N.J.R. 601(b).
• Amended by R.1993 d.350, effective 7/19/1993.
• See: 25 N.J.R. 1350(a), 25 N.J.R. 3150(a).
• Public Notice: Oswego River Natural Area boundary change.
• See: 26 N.J.R. 1540(b).
• Public Notice: Farny Natural Area management plan and boundary revision.
• See: 26 N.J.R. 2480(a).
• Public Notice: Washington Crossing Natural Area management plan and boundary revision.
• See: 26 N.J.R. 2481(a).
• Public Notice: Dryden Kuser Natural Area management plan and boundary revision.
• See: 27 N.J.R. 388(c).
• Public Notice: Oswego River Natural Area management plan.
• See: 27 N.J.R. 2488(b).
• Public Notice: Amendment to Dryden Kuser Natural Area Management Plan.
• See: 27 N.J.R. 4014(a).
• Public Notice: Parvin Natural Area management plan.
• See: 27 N.J.R. 4917(a).
• Public Notice: Batsto Natural Area boundary revision.
• See: 28 N.J.R. 5500(a).
• Public Notice: Cape May Point Natural Area Management plan revision.
• See: 29 N.J.R. 1402(c).
• Public Notice: Wawayanda Hemlock Ravine Natural Area Management plan and boundary revision.
• See: 29 N.J.R. 1404(a).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 N.J.R. 897(a), 30 N.J.R. 2207(a).
• In (a), changed management objectives and administering agencies throughout, and inserted references to Hammonton Town and Shamong Township in 3i.
• Public Notice: Ranococas Natural Area management plan.
• See: 30 N.J.R. 3335(a).
• Public Notice: Allamuchy Natural Area management plan.
• See: 33 N.J.R. 3692(b).
• Public Notice: Whittingham Natural Area boundary change.
• See: 34 N.J.R. 3989(b).
• Amended by R.2003 d.45, effective 1/21/2003.
• See: 34 N.J.R. 73(a), 35 N.J.R. 416(b).
• In (a), inserted a new 35 and recodified former 35 through 42 as 36 through 43.
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 N.J.R. 3008(a), 36 N.J.R. 3463(a), 36 N.J.R. 5670(a).
• Rewrote the section.
• Amended by R.2010 d.093, effective 6/21/2010.
• See: 41 N.J.R. 4154(a), 42 N.J.R. 642(a), 42 N.J.R. 1167(a).
• In (a)5iv and (a)10iv, substituted "Fish and Wildlife" for "Parks and Forestry"; in (a)5iv, substituted "Millville Wildlife Management Area" for "Belleplain State Forest"; in (a)10iv, substituted "Coastal Wetlands Wildlife Management Area" for "Point State Park"; in (a)19iv, substituted "Spruce Run Recreation Area" for "Voorhees State Park"; deleted former (a)24; recodified former (a)25 through (a)32 as (a)24 through (a)31; and added new (a)32.

N.J. Admin. Code § 7:5A-1.14 Public Information

Interested persons may obtain information on the Natural Area System or inspect general location maps of natural areas by contacting:

Office of Natural Lands Management

Division of Parks and Forestry

Department of Environmental Protection

PO Box 404

Trenton, New Jersey 08625-0404

(609) 984-1339

NatLands@dep.state.nj.us

History

• New Rule: R.1992 d.77, effective 2/18/1992.
• See: 23 New Jersey Register 1985(b), 24 New Jersey Register 581(b).
• Amended by R.1998 d.308, effective 6/15/1998.
• See: 30 New Jersey Register 897(a), 30 New Jersey Register 2207(a).
• Amended by R.2004 d.463, effective 12/20/2004.
• See: 36 New Jersey Register 3008(a), 36 New Jersey Register 3463(a), 36 New Jersey Register 5670(a).
• Inserted "general" preceding "location", added website address.

Chapter 5C ENDANGERED PLANT SPECIES PROGRAM

Subchapter 1 GENERAL INFORMATION

N.J. Admin. Code § 7:5C-1.1 Purpose and scope

This chapter constitutes the rules of the Department of Environmental Protection concerning the development and adoption of a State endangered plant species list, as authorized by P.L. 1989, c.56 (N.J.S.A. 13:1B-15.151 through 13:1B-15.158), and contains the official Endangered Plant Species List. The purpose of this chapter is to provide detailed procedures, standards, and criteria for developing and adopting a list of endangered plant species native to the State, in order to eliminate the confusion resulting from various existing inconsistent unofficial lists and to efficiently incorporate the preservation of the State's natural diversity into government planning operations.

N.J. Admin. Code § 7:5C-1.2 Construction

This chapter shall be liberally construed to permit the Department to effectuate the purposes of P.L. 1989, c.56 (N.J.S.A. 13:1B-15.151 through 13:1B-15.158).

N.J. Admin. Code § 7:5C-1.3 Severability

If any subchapter, section, subsection, provision, clause or portion of the chapter, or the application thereof to any person, is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the subchapter, section, subsection, provision, clause, portion, or application directly involved in the controversy in which such judgment shall have been rendered and it shall not affect or impair the remainder of this chapter or the application thereof to other persons.

N.J. Admin. Code § 7:5C-1.4 Definitions

The following words and phrases, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

"APA" means the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

"Commissioner" means the Commissioner of the Department of Environmental Protection, or his or her designee.

"Department" means the Department of Environmental Protection.

"Division" means the Division of Parks and Forestry in the Department of Environmental Protection.

"Endangered Plant Species List" means the official State list of native endangered plant species promulgated by the Department pursuant to P.L. 1989, c.56 (N.J.S.A. 13:1B-15.151 through 13:1B-15.158) and the rules in this chapter.

"Endangered species" means any native plant species whose survival in the State or the nation is in jeopardy, including, but not limited to: plant species designated as listed, proposed, or under review by the Federal government as endangered or threatened throughout its range in the United States pursuant to the "Endangered Species Act of 1973," P.L. 93-205 (16 U.S.C. section 1533 et seq.), as amended; any additional species known or believed to be rare throughout its worldwide range; and any species having five or fewer extant populations within the State.

"Extant populations" means those populations documented in the Natural Heritage Database to exist at a particular location.

"Native" means growing or living naturally in New Jersey without having been brought to or planted in New Jersey by any person.

"Natural Heritage Database" means the manual and computerized file maintained within the Division of Parks and Forestry which includes continually updated information on the location and status of native plant species of the State, as authorized by N.J.S.A. 13:1B-15.146 through 13:1B-15.150.

"Plant" means any member of the Plant Kingdom, including all roots, stems, leaves, flowers, fruits, seeds, spores, gametophytes, and other parts thereof.

"Plant Kingdom" means those organisms contained in the phylum Bryophyta and phylum Tracheophyta.

"Population" means a group of individuals of the same species which occupy a specific geographic location.

"Rare" means extremely uncommon making it vulnerable to extinction throughout its range.

"Species" means any species, subspecies, or variety of plant.

"Under review by the Federal government as endangered or threatened" means plant species listed as candidate species in the most recent Notice of Review published in the Federal Register by the United States Fish and Wildlife Service.

History

• Amended by R.1991 d.446, effective 8/19/1991.
• See: 23 New Jersey Register 812(a), 23 New Jersey Register 2507(b).
• Added "Extant population" and "Plant Kingdom". Amended "Under review by the Federal government as endangered or threatened".
• Amended by R.2000 d.42, effective 1/18/2000.
• See: 31 New Jersey Register 3005(a), 32 New Jersey Register 274(a).
• In "Under review by the Federal government as endangered or threatened", substituted "as candidate species" for "within status categories 1 and 2" following "listed".

Subchapter 2 DEVELOPMENT AND ADOPTION OF ENDANGERED PLANT SPECIES LIST

N.J. Admin. Code § 7:5C-2.1 Development and adoption of Endangered Plant Species List

(a) The Commissioner will direct research and investigations related to historical records, populations, distributions, critical habitat needs, limiting factors, and other biological and ecological data that will aid in determining the eligibility of native plant species for inclusion on the Endangered Plant Species List. The Department will incorporate the results of research and investigations conducted under this section into the Division's Natural Heritage Database.

(b) On the basis of research and investigations described at (a) above and information contained in the Natural Heritage Database, the Department will propose and adopt, pursuant to the APA, designation to the Endangered Plant Species List of those native plant species meeting the criteria at N.J.A.C. 7:5C-2.2, giving the common and scientific name for each listed species.

(c) The Department will, on the basis of new or updated information in the Natural Heritage Database, review the Endangered Plant Species List at least annually to determine if additions or deletions to the list are needed based on the criteria at N.J.A.C. 7:5C-2.2. If the Department determines on the basis of its review that a listed plant species is no longer endangered, or that a plant species qualifies for listing as endangered, the Department may propose and adopt, pursuant to the APA, revision of the Endangered Plant Species List. The Department will not propose the removal from the Endangered Plant Species List of any native plant species designated as listed, proposed, or under review by the Federal government as endangered or threatened.

N.J. Admin. Code § 7:5C-2.2 Criteria for designating plant species as endangered

(a) The Department will designate a plant species as endangered if it is a native plant species and it satisfies one or more of the following criteria:

1. The Department makes a determination that its survival in the State or nation is in jeopardy based on the best available scientific information, including, but not limited to:

i. The number of apparently secure populations in the State as compared to the number of populations vulnerable to decimation by natural or man-made factors;

ii. The total number of individuals or number of individuals per population of the species in the State; or

iii. The inherent ability of the species or population to perpetuate itself in the State;

2. It is listed, proposed, or under review by the Federal government as endangered or threatened throughout its range in the United States pursuant to the "Endangered Species Act of 1973," P.L. 93-205 (16 U.S.C. section 1533 et seq.), as amended;

3. It is known or believed to be rare throughout its worldwide range; and/or

4. It has five or fewer extant populations in the State.

Subchapter 3 PLANT SPECIES OF CONCERN

N.J. Admin. Code § 7:5C-3.1 Plant species of concern

The Department will maintain a list of plant species of concern for the purpose of monitoring the status of the State's flora and to serve as a working list for transition of species to and from the Endangered Plant Species List. The list of plant species of concern will be composed of those species not listed as endangered at N.J.A.C. 7:5C-5.1 and whose populations are monitored by the Natural Heritage Database.

History

• Amended by R.1991 d.446, effective 8/19/1991.
• See: 23 New Jersey Register 812(a), 23 New Jersey Register 2507(b).
• Deleted "additional" and added "of concern".

Subchapter 4 PUBLIC PARTICIPATION

N.J. Admin. Code § 7:5C-4.1 Public participation

Persons with information that will help the Department in determining whether a plant species qualifies under the criteria at N.J.A.C. 7:5C-2.2 as endangered may submit specific information to the Division at the following address detailing how the species may qualify as endangered pursuant to N.J.A.C. 7:5C-2.2:

Office of Natural Lands Management

Division of Parks and Forestry

Mail Code 501-04

P.O. Box 420

5 Station Plaza

501 East State Street

Trenton, New Jersey 08625-0420

e-mail: NatLands@dep.state.nj.us

History

• Amended by R.2000 d.42, effective 1/18/2000.
• See: 31 N.J.R. 3005(a), 32 N.J.R. 274(a).
• Amended by R.2013 d.109, effective 9/3/2013.
• See: 44 N.J.R. 2020(a), 45 N.J.R. 2037(a).
• Updated the address.

Subchapter 5 ENDANGERED PLANT SPECIES LIST

N.J. Admin. Code § 7:5C-5.1 Endangered Plant Species List

The following plant species are designated as endangered plant species:

| 1. | Scientific Name | Common Name | | --- | --- | --- | | Aeschynomene virginica | sensitive joint-vetch | | | Alisma triviale | large water-plantain | | | Amaranthus pumilus | sea-beach pigweed | | | Amelanchier sanguinea | running serviceberry | | | Ammannia latifolia | Koehn's tooth-cup | | | Andromeda glaucophylla | bog rosemary | | | Anemone cylindrica | long-headed anemone | | | Antennaria neglecta var. | Canada pussytoes | | | canadensis | | | | Aplectrum hyemale | puttyroot | | | Arabis drummondii | Drummond's rock cress | | | Arceuthobium pusillum | dwarf mistletoe | | | Arenaria stricta | rock sandwort | | | Aristida lanosa | wooly three-awned grass | | | Armoracia lacustris | lake cress | | | Asimina triloba | pawpaw | | | Asplenium bradleyi | Bradley's spleenwort | | | Asplenium pinnatifidum | lobed spleenwort | | | Aster borealis | rush aster | | | Aster firmus | shining aster | | | Aster praealtus | willow-leaved aster | | | Aster radula | low rough aster | | | Athyrium pycnocarpon | glade fern | | | Atriplex subspicata | orache | | | Bidens beckii | water-marigold | | | Bidens eatonii | Eaton's bur-marigold | | | Boltonia asteroides var | boltonia | | | glastifolia | | | | Botrychium multifidum | leathery grape-fern | | | Bouteloua curtipendula | side-oats gramma grass | | | Cacalia atriplicifolia | pale indian plantain | | | Calamagrosatis pickeringii | Pickering's reedgrass | | | Calystegia sepium ssp. erratica | bindweed | | | Calystegia spithamea | erect bindweed | | | Cardamine longii | Long's bitter cress | | | Cardamine maxima | large-leaved toothwort | | | Cardamine rotundifolia | round-leaved water-cress | | | Carex albursina | sedge | | | Carex alopecoidea | foxtail sedge | | | Carex amphibola var. amphibola | narrow-leaved sedge | | | Carex aquatilis | water sedge | | | Carex arctata | dropping woodsedge | | | Carex backii | Back's sedge | | | Carex brunnescens | brownish sedge | | | Carex bushii | Bush's sedge | | | Carex crawei | Crawe's sedge | | | Carex cumulata | clustered sedge | | | Carex deweyana | Dewey's sedge | | | Carex formosa | handsome sedge | | | Carex haydenii | cloud sedge | | | Carex jamesii | Nebraska sedge | | | Carex joorii | cypress-swamp sedge | | | Carex leptonervia | finely-nerved sedge | | | Carex limosa | mud sedge | | | Carex louisianica | Louisiana sedge | | | Carex lupuliformis | hop-like sedge | | | Carex oligocarpa | few-fruited sedge | | | Carex peckii | white-tinged sedge | | | Carex plantaginea | plantain-leaved sedge | | | Carex polymorpha | variable sedge | | | Carex pseudocyperus | cyperus-like sedge | | | Carex siccata | dry-spiked sedge | | | Carex tuckermanii | Tuckerman's sedge | | | Castanea pumila | Allegheny chinquapin | | | Centrosema virginianum | spurred butterfly pea | | | Ceratophyllum echinatum | spiny coontail | | | Cercis canadensis | redbud | | | Chenopodium rubrum | red goosefoot | | | Cinna latifolia | slender wood reedgrass | | | Cirsium virginianum | Virginia thistle | | | Claytonia virginica var. | Hammond's yellow spring beauty | | | hammondiae | | | | Cleistes divaricata | spreading pogonia | | | Clitoria mariana | butterfly pea | | | Coelorachis rugosa | wrinkled jointgrass | | | Commelina erecta | slender dayflower | | | Conioselinum chinense | hemlock-parsley | | | Corema conradii | broom crowberry | | | Cornus amomum var. schuetzeana | silky dogwood | | | Crataegus calpodendron | pear hawthorn | | | Crataegus succulenta | fleshy hawthorn | | | Cryptogramma stelleri | slender rock-brake | | | Cuscuta cephalanthii | button-bush dodder | | | Cuscuta indecora | collared dodder | | | Cynoglossum virginianum var. | northern wild comfrey | | | boreale | | | | Cyperus hystricinus | flatsedge | | | Cyperus lancastriensis | Lancaster flat sedge | | | Cyperus plukenetii | Plukenet's flatsedge | | | Cyperus polystachyos | coast flatsedge | | | Cyperus pseudovegetus | marsh flatsedge | | | Cyperus refractus | reflexed flatsedge | | | Cyperus retrofractus | rough flatsedge | | | Cyperus schweinitzii | Schweinitz's flatsedge | | | Cyperus tenuifolius | low flatsedge | | | Cypripedium candidum | small white lady's-slipper | | | Cypripedium reginae | showy lady's-slipper | | | Dalibarda repens | robin-run-away | | | Desmodium humifusum | trailing tick-trefoil | | | Desmodium pauciflorum | few-flowered tick-trefoil | | | Desmodium sessilifolium | sessile-leaved tick-trefoil | | | Dicentra canadensis | squirrel-corn | | | Dicentra eximia | wild bleeding-hearts | | | Diodia virginiana | larger buttonweed | | | Draba reptans | Carolina whitlow-grass | | | Eleocharis brittonii | Britton's spikerush | | | Eleocharis compressa | flat-stemmed spikerush | | | Eleocharis equisetoides | knotted spikerush | | | Eleocharis melanocarpa | black-fruited spikerush | | | Eleocharis minima | small spikerush | | | Eleocharis pauciflora | few-flowered spikerush | | | Eleocharis tenuis var. verrucosa | spikerush | | | Eleocharis tortilis | twisted spikerush | | | Elephantopus carolinianus | elephant's foot | | | Ellisia nyctelea | Aunt Lucy | | | Elymus trachycaulus | slender wheatgrass | | | Equisetum pratense | meadow horsetail | | | Equisetum variegatum | variegated horsetail | | | Eriophorum gracile | slender cottongrass | | | Eriophorum tenellum | rough cottongrass | | | Eriophorum vaginatum var. | sheathed cottongrass | | | spissum | | | | Eupatorium capillifolium | dog-fennel thoroughwort | | | Eupatorium resinosum | pine barren boneset | | | Euphorbia marilandica | Maryland spurge | | | Euphorbia purpurea | glade spurge | | | Filipendula rubra | queen-of-the-prairie | | | Fraxinus profunda | pumpkin ash | | | Galactia volubilis | downy milk-pea | | | Galium hispidulum | coast bedstraw | | | Galium labradoricum | Labrador marsh bedstraw | | | Galium trifidum | small bedstraw | | | Gaultheria hispidula | creeping snowberry | | | Gentiana linearis | narrow-leaved gentian | | | Glaux maritima | sea-beach milkwort | | | Glyceria borealis | small floating mannagrass | | | Glyceria grandis | American mannagrass | | | Gnaphalium helleri | Heller's everlasting | | | Gnaphalium macounii | clammy everlasting | | | Goodyera tesselata | checkered rattlesnake plantain | | | Gymnopogon brevifolius | short-leaved skeleton grass | | | Helonias bullata | swamp-pink | | | Hemicarpha micrantha | Hemicarpha | | | Hieracium kalmii | Canada hawkweed | | | Hottonia inflata | featherfoil | | | Hybanthus concolor | green violet | | | Hydrastis canadensis | goldenseal | | | Hydrocotyle ranunculoides | floating pennywort | | | Hydrophyllum canadense | broad-leaved waterleaf | | | Hypericum adpressum | Barton's St. John's-wort | | | Hypericum majus | larger Canadian St. John's-wort | | | Hypericum prolificum | shrubby St. John's-wort | | | Ilex montana | mountain holly | | | Isanthus brachiatus | false pennyroyal | | | Isoetes lacustris | lake quillwort | | | Isoetes melanopoda | black-based quillwort | | | Isoetes tuckermanii | Tuckerman's quillwort | | | Isotria medeoloides | small whorled pogonia | | | Jeffersonia diphylla | twinleaf | | | Juncus brachycarpus | short-fruited rush | | | Juncus caesariensis | New Jersey rush | | | Juncus coriaceus | awl-leaved rush | | | Juncus elliottii | Elliott's rush | | | Juncus torreyi | Torrey's rush | | | Kalmia polifolia | pale laurel | | | Krigia dandelion | dwarf dandelion | | | Kuhnia eupatorioides | false boneset | | | Lathyrus ochroleucus | pale vetchling peavine | | | Lathyrus venosus | smooth veiny peavine | | | Lechea tenuifolia | slender pinweed | | | Lemna perpusilla | minute duckweed | | | Lemna valdiviana | pale duckweed | | | Liatris scariosa var. | northern blazing star | | | novae-angliae | | | | Limosella subulata | mudweed | | | Linnaea borealis | twin-flower | | | Linum intercursum | Florida yellow flax | | | Linum sulcatum | grooved yellow flax | | | Listera cordata | heart-leaved twayblade | | | Listera smallii | kidney-leaved twayblade | | | Lobelia boykinii | Boykin's lobelia | | | Lobelia dortmanna | water lobelia | | | Lonicera canadensis | fly honeysuckle | | | Luzula acuminata | hairy woodrush | | | Lycopodium annotinum | stiff clubmoss | | | Maianthemum canadense var. | Western wild lily of the valley | | | interius | | | | Malaxis bayardii | Long's adder's-mouth | | | Malaxis monophyllos | white adder's-mouth | | | Melanthium virginicum | Virginia bunchflower | | | Micranthemum micranthemoides | Nuttall's mudwort | | | Milium effusum | tall millet grass | | | Monarda clinopodia | basil bee-balm | | | Muhlenbergia capillaris | long-awned smoke grass | | | Myriophyllum pinnatum | cut-leaved water-milfoil | | | Myriophyllum sibiricum | Siberian water-milfoil | | | Myriophyllum tenellum | slender water-milfoil | | | Myriophyllum verticillatum | whorled water-milfoil | | | Narthecium americanum | bog asphodel | | | Nelumbo lutea | American lotus | | | Nuphar microphyllum | small yellow pond lily | | | Oenothera humifusa | sea-side evening primrose | | | Onosmodium virginianum | Virginia false-gromwell | | | Ophioglossum vulgatum var. | sheathed adder's tongue | | | pycnostichum | | | | Oryzopsis asperifolia | white-grained mountainricegrass | | | Oryzopsis pungens | slender mountain ricegrass | | | Panicum aciculare | bristling panic grass | | | Panicum boreale | northern panic grass | | | Panicum flexile | wiry panic grass | | | Panicum hirstii | Hirsts' panic grass | | | Panicum xanthophysum | slender panic grass | | | Penstemon laevigatus | smooth beard tongue | | | Phlox divaricata | wild blue phlox | | | Phlox pilosa | downy phlox | | | Phyla lanceolata | fog fruit | | | Picea rubens | red spruce | | | Pinus pungens | table mountain pine | | | Pinus resinosa | red pine | | | Plantago pusilla | slender plantain | | | Platanthera flava var. flava | southern rein orchid | | | Platanthera hookeri | Hooker's orchid | | | Platanthera integra | yellow fringeless orchid | | | Platanthera nivea | snowy orchid | | | Platanthera orbiculata | large round-leaved orchid | | | Platanthera peramoena | purple fringeless orchid | | | Pluchea foetida | stinking fleabane | | | Poa autumnalis | autumn bluegrass | | | Poa saltuensis | bluegrass | | | Polemonium reptans | Greek valerian | | | Polygala incarnata | pink milkwort | | | Polygala senega | Seneca snakeroot | | | Polygonum densiflorum | stout smartweed | | | Polygonum glaucum | sea-beach knotweed | | | Polymnia uvedalia | bearsfoot | | | Potamogeton alpinus | northern pondweed | | | Potamogeton illinoensis | Illinois pondweed | | | Potamogeton obtusifolius | obtuse-leaved pondweed | | | Potamogeton praelongus | white-stemmed pondweed | | | Potamogeton robbinsii | Robbins' pondweed | | | Potamogeton zosteriformis | flat-stemmed pondweed | | | Potentilla palustris | marsh cinquefoil | | | Potentilla tridentata | three-toothed cinquefoil | | | Prenanthes racemosa | smooth rattlesnake root | | | Prunus alleghaniensis | Alleghany plum | | | Prunus angustifolia | Chickasaw plum | | | Ptelea trifoliata | wafer ash | | | Pycnanthemum clinopodioides | basil mountain mint | | | Pycnanthemum torrei | Torrey's mountain mint | | | Pyrola chlorantha | greenish-flowered wintergreen | | | Quercus imbricaria | shingle oak | | | Quercus lyrata | overcup oak | | | Quercus nigra | water oak | | | Ranunculus allegheniensis | Allegheny mountain crowfoot | | | Ranunculus cymbalaria | sea-side crowfoot | | | Ranunculus fascicularis | early buttercup | | | Ranunculus reptans | creeping buttercup | | | Rhexia aristosa | awned meadowbeauty | | | Rhexia interior | showy meadowbeauty | | | Rhododendron atlanticum | dwarf azalea | | | Rhododendron canadense | rhodora | | | Rhynchospora capillacea | capillary beaked rush | | | Rhynchospora filifolia | thread-leaved beaked rush | | | Rhynchospora globularis | grass-like beaked rush | | | Rhynchospora glomerata | clustered beaked rush | | | Rhynchospora knieskernii | Knieskern's beaked rush | | | Rhynchospora microcephala | small-headed beaked rush | | | Rhynchospora rariflora | rare-flowering beaked rush | | | Ribes glandulosum | skunk currant | | | Ribes missouriense | Missouri gooseberry | | | Rubus canadensis | smooth blackberry | | | Rudbeckia fulgida | orange coneflower | | | Ruellia caroliniensis | Carolina petunia | | | Sacciolepis striata | American cupscale | | | Sagittaria australis | southern arrow head | | | Sagittaria cuneata | arum-leaved arrow head | | | Sagittaria teres | slender arrow head | | | Salix pedicellaris | bog willow | | | Sanicula trifoliata | large-fruited sanicle | | | Scheuchzeria palustris | arrow-grass | | | Schizachne purpurascens | purple oats | | | Schoenoplectus torreyi | Torrey's bulrush | | | Schwalbea americana | chaffseed | | | Scirpus longii | Long's bulrush | | | Scirpus maritimus | salt marsh bulrush | | | Scirpus microcarpus | barber pole bulrush | | | Scirpus pedicellatus | stalked bulrush | | | Scleria verticillata | whorled nut rush | | | Scutellaria leonardii | small skullcap | | | Silene nivea | snowy campion | | | Sisyrinchium montanum | strict blue-eyed grass | | | Smilacina trifolia | three-leaved Solomon's seal | | | Solidago rigida | stiff goldenrod | | | Sparganium angustifolium | narrow-leaved bur-reed | | | Sparganium minimum | small bur-reed | | | Sphagnum angustifolium | sphagnum | | | Sphagnum austinii | sphagnum | | | Sphagnum centrale | sphagnum | | | Sphagnum contortum | sphagnum | | | Sphagnum macrophyllum var. | sphagnum | | | floridanum | | | | Sphagnum majus ssp. norvigicum | sphagnum moss | | | Sphagnum platyphyllum | sphagnum | | | Sphagnum quinquefarium | sphagnum moss | | | Sphagnum riparium | sphagnum | | | Sphagnum strictum | sphagnum | | | Sphagnum subfulvum | sphagnum moss | | | Sphagnum subsecundum | sphagnum | | | Spiranthes laciniata | lace-lip ladies'-tresses | | | Sporobolus neglectus | puff-sheathed dropseed | | | Stachys palustris var. | marsh hedge-nettle | | | homotricha | | | | Stellaria borealis | northern stichwort | | | Stellaria pubera | star chickweed | | | Streptopus amplexifolius | white twisted-stalk | | | Streptopus roseus | rosy twisted-stalk | | | Stylisma pickeringii var. | Pickering's morning-glory | | | pickeringii | | | | Suaeda rollandii | sea blight | | | Thuja occidentalis | northern white cedar | | | Tiarella cordifolia | foamflower | | | Tofieldia racemosa | false asphodel | | | Triadenum walteri | Walter's St. John's-wort | | | Trichomanes intricatum | filmy fern | | | Tridens flavus var. chapmanii | Chapman's redtop | | | Triglochin maritimum | sea-side arrow-grass | | | Triosteum augustifolium | narrow-leaved tinker's-weed | | | Triphora trianthophora | three birds orchid | | | Trollius laxus ssp. laxus | spreading globe flower | | | Utricularia biflora | two-flowered bladderwort | | | Utricularia minor | lesser bladderwort | | | Utricularia olivacea | dwarf white bladderwort | | | Utricularia resupinata | reversed bladderwort | | | Uvularia puberula var. nitida | pine barren bellwort | | | Valerianella radiata | beaked corn-salad | | | Valerianella umbilicata | corn-salad | | | Verbena simplex | narrow-leaved vervain | | | Vernonia glauca | broad-leaved ironweed | | | Veronica catenata | speedwell | | | Viburnum alnifolium | witch hobble | | | Vicia caroliniana | Carolina wood vetch | | | Viola canadensis | Canada violet | | | Viola septentrionalis | northern blue violet | | | Vitis novae-angliae | New England grape | | | Vulpia elliotea | squirrel fescue | | | Wolffiella floridana | Florida bogmat | | | Xyris caroliniana | sand yellow-eyed grass | | | Xyris fimbriata | fringed yellow-eyed grass | | | Xyris montana | northern yellow-eyed grass | | | Zigadenus leimanthoides | oceanorus | |

History

• Amended by R.1990 d.292, effective 6/4/1990.
• See: 22 N.J.R. 94(a), 22 N.J.R. 1743(a).
• Added Endangered Plant Species List.
• Amended by R.1991 d.446, effective 8/19/1991.
• See: 23 N.J.R. 812(a), 23 N.J.R. 2507(b).
• Added plant species to list.
• Amended by R.1995 d.45, effective 1/17/1995.
• See: 26 N.J.R. 3790(a), 27 N.J.R. 322(a).
• Amended by R.2000 d.42, effective 1/18/2000.
• See: 31 N.J.R. 3005(a), 32 N.J.R. 274(a).
• Changed plant species list.
• Amended by R.2013 d.109, effective 9/3/2013.
• See: 44 N.J.R. 2020(a), 45 N.J.R. 2037(a).
• Updated the plant species list.

Chapter 5D STATE TRAILS SYSTEM

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:5D-1.1 Purpose and scope

This chapter constitutes the rules of the Department concerning the implementation of the New Jersey Trails System Act, N.J.S.A. 13:8-30 et seq. This chapter establishes standards, procedures and practices for designating and maintaining trails as part of the State Trails System, in order to provide for the ever-increasing outdoor recreation needs of an expanding population and to promote public access to, travel within, and enjoyment and appreciation of the outdoor, natural and remote areas of the State. Designation of trails to the System is intended to help preserve the natural, recreational, ecological, geological, historic and cultural qualities of trails and the areas through which they pass; to increase open space and recreational opportunities; and to enhance the quality of life in New Jersey for all State residents and visitors.

N.J. Admin. Code § 7:5D-1.2 Construction

This chapter shall be liberally construed to permit the Department to effectuate the purposes of the New Jersey Trails System Act, N.J.S.A. 13:8-30 et seq.

N.J. Admin. Code § 7:5D-1.3 Severability

If any subchapter, section, subsection, provision, clause or portion of this chapter, or the application thereof to any person, is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the subchapter, section, subsection, provision, clause, portion or application directly involved in the controversy in which such judgment is rendered and shall not affect or impair the validity of the remainder of this chapter or the application thereof to other persons.

N.J. Admin. Code § 7:5D-1.4 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the text dearly indicates otherwise:

"Act" means the New Jersey Trails System Act, N.J.S.A. 13:8-30 et seq.

"ADA" means the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

"Administering agency" means

(1) any agency of the Department that is assigned responsibility for managing a particular parcel of land, or

(2) any Federal agency, State department, local unit or charitable conservancy that establishes a land management policy for a particular parcel of land included in a designated State trail.

"Charitable conservancy" means a corporation or trust whose purposes include the acquisition and preservation of land or water areas, or of a particular land or water area, or either thereof, in a natural, scenic or open condition, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which has received tax exemption under section 501(c)3 of the Internal Revenue Code.

"Commissioner" means the Commissioner of the Department or his or her designated representative.

"Conservation restriction" means an interest in land less than fee simple absolute, stated in the form of a right, restriction, easement, covenant, or condition, in any deed, will or other instrument, other than a lease, executed by or on behalf of the owner of the land, appropriate to retaining land or water areas predominantly in their natural, scenic or open or wooded condition, or for conservation of soil or wildlife, or for outdoor recreation or park use, or as suitable habitat for fish or wildlife, executed for the purposes listed at N.J.S.A. 13:8B-2(b).

"Council" means the New Jersey Trails Council.

"Department" means the New Jersey Department of Environmental Protection, its successors and assigns.

"Division" means the Division of State Parks, Forests, and Historic Sites in the Department.

"Local unit" means a municipality, county or other political subdivision of the State or agency thereof.

"New Jersey Trails Council" means the advisory board established by the Department and authorized by P.L. 1975, c.367, to undertake a study and prepare a plan for a coordinated system of trails throughout the State, and continued by the Department for the purpose of providing public input into the administration of the State Trails System.

"Scenic easement" means a perpetual easement in land which

(1) is held for the benefit of the public,

(2) is specifically enforceable by its holder or beneficiary, and

(3) limits or obligates the holder of the servient estate and his or her heirs and assigns with respect to their use and management of activities conducted thereon, the object of such limitations and obligations being the maintenance or enhancement of the natural beauty of the land in question or of areas affected by it.

"State Trails System" or "System" means the statewide system of individual trails or group of trails authorized by the Act and designated pursuant to this chapter.

"Trail facility" means any area, structure or equipment that functions to provide a service to the trail user, including, but not limited to, parking lots, picnic areas and rest rooms.

"Trail right-of-way" means a road, path, or water body and adjacent land, under the jurisdiction of an administering agency and designated for public trail access pursuant to this chapter.

"Trails Plan" means the plan for a coordinated system of trails throughout the State authorized by P.L. 1975, c.367, as updated.

History

• Amended by R.2000 d.156, effective 4/17/2000.
• See: 32 New Jersey Register 348(a), 32 New Jersey Register 1380(c).
• In "Conservation restriction", substituted "executed" for "executive" following "wildlife,".
• Amended by R.2005 d.337, effective 10/3/2005.
• See: 37 New Jersey Register 1111(a), 37 New Jersey Register 3812(c).
• In "New Jersey Trails Council" and "Trails Plan" definitions, added "P." preceding "L. 1975".

Subchapter 2 NEW JERSEY TRAILS COUNCIL

N.J. Admin. Code § 7:5D-2.1 New Jersey Trails Council

(a) The New Jersey Trails Council shall advise the Department on the designation of trails to the State Trails System and the management of the State Trails System.

(b) The Council shall consist of representatives from trail user groups, outdoor recreation and conservation organizations, and State governmental agencies. Members of the Council representing trail user groups and outdoor recreation and conservation organizations shall be appointed by the Commissioner and shall serve for a period of three years from the date of appointment and until their successors are duly appointed. Members of the Council representing State governmental agencies shall serve as ex-officio members, and shall be appointed by the Commissioner of their respective departments.

(c) The Council shall:

1. Provide a forum for the public to discuss issues related to the designation and management of the State Trails System or the contents of the Trails Plan;

2. Advise the Department on the establishment, development, and maintenance of scenic, recreation and connecting trails on lands owned by the Department;

3. Advise the Department on the trail development potential of proposed State acquisitions;

4. Review proposals for trail designation submitted by Federal or State agencies, local units, private organizations or persons and advise the Department on such proposals;

5. Periodically evaluate the Trails Plan and advise the Department on additions, deletions, and modifications;

6. Review trail proposals and funding allocations consistent with any Federal requirements for trail acquisition and management, and advise the Department on the results of its review; and

7. Encourage the development of trails throughout the State and provide information to the State and the public on trails issues of Statewide interest.

Subchapter 3 LAND ACQUISITION FOR TRAILS

N.J. Admin. Code § 7:5D-3.1 Land acquisition for trails

(a) The Department, with the advice of the Council, may acquire interest in land for trails purposes in fee simple, or by conservation restriction or scenic easement, through purchase, donation or exchange.

(b) The Department shall review for trails acquisition potential all formal declarations of railroad right-of-way abandonments by the Interstate Commerce Commission or other Federal agencies.

Subchapter 4 CLASSES OF TRAILS

N.J. Admin. Code § 7:5D-4.1 Classes of trails

(a) The State Trails System is composed of the following classes of trails:

1. Scenic trails;

2. Recreation trails; and

3. Connecting trails.

N.J. Admin. Code § 7:5D-4.2 Scenic trails

(a) Scenic trails are designated to the State Trails System to provide the public with the opportunity for the appreciation of natural and cultural areas, and to facilitate the conservation and enjoyment of significant scenic, historic, natural, ecological, geological or cultural areas through which such trails pass.

(b) Scenic trails shall be designated for a single nonmotorized trail use. The Department shall specify the uses of scenic trails upon their designation to the State Trails System. The Department may allow segments of scenic trails to be used for additional nonmotorized uses such as hiking, horseback riding, bicycling, cross-country skiing and/or snowshoeing, as appropriate.

(c) Scenic trails must be five miles or longer in length, but a scenic trail may consist of segments or components of a group of trails totalling five miles or more.

History

• Amended by R.2000 d.156, effective 4/17/2000.
• See: 32 New Jersey Register 348(a), 32 New Jersey Register 1380(c).
• Rewrote (b).
• Amended by R.2005 d.337, effective 10/3/2005.
• See: 37 New Jersey Register 1111(a), 37 New Jersey Register 3812(c).
• In (b), deleted "canoeing," and "ski touring," and added "cross-country skiing" and "snowshoeing,".

N.J. Admin. Code § 7:5D-4.3 Recreation trails

(a) Recreation trails are designated to the State Trails System to provide the public with the opportunity for a variety of outdoor recreational uses.

(b) The Department shall specify the uses of recreational trails upon their designation to the State Trails System. Such uses may include hiking, canoeing, kayaking, horseback riding, carriage driving, bicycling, cross-country skiing, snowshoeing, orienteering, rock climbing, in-line skating, dog-sledding, snowmobiling, motorcycling, use of off-road vehicles (ORVs) or cultural, educational or historical touring.

History

• Amended by R.2005 d.337, effective 10/3/2005.
• See: 37 New Jersey Register 1111(a), 37 New Jersey Register 3812(c).
• In (b), deleted "ski touring," and added "carriage driving," and "cross-country skiing, snowshoeing, orienteering, rock climbing, in-line skating, dog-sledding,"; rewrote "(ORV's)" as "(ORVs)"; added ", educational" following "or cultural".

N.J. Admin. Code § 7:5D-4.4 Connecting trails

Connecting trails are designated to the State Trails System to provide additional points of public access to scenic or recreation trails or to provide connections between such trails, including connections between points of interest on such trails.

Subchapter 5 DESIGNATION OF TRAILS TO THE STATE TRAILS SYSTEM

N.J. Admin. Code § 7:5D-5.1 Qualifications for designation

(a) To qualify for designation to the State Trails System, a trail must satisfy one of the following qualifications:

1. The trail right-of-way is owned through fee simple title or held under a conservation restriction or scenic easement by the State and administered by the Department;

2. The trail right-of-way is owned through fee simple title or held under a conservation restriction or scenic easement by a local unit or a charitable conservancy, and access to and use of the trail right-of-way is guaranteed through a legal instrument dedicating the trail right-of-way for trail purposes duly filed with the appropriate county clerk; or

3. The trail right-of-way is owned by the Federal government or State agency other than the Department and there is a written cooperative agreement between the owner agency and the Department designating land or water areas for trail purposes.

N.J. Admin. Code § 7:5D-5.2 Public information

(a) Any Federal or State agency, local unit, private organization or person may submit to the Department a request for designation of a trail to the State Trails System in accordance with the criteria for eligibility set forth at (d)l through 7 below. The trail designation request shall also include documentation prepared to support eligibility for designation in accordance with (e) below. The trail designation request shall be submitted to the Department at the following address; State Trails System, Green Acres Program, Department of Environmental Protection, Mailcode 401-07B, PO Box 420, Trenton, New Jersey 08625-0420.

(b) The Division, with the advice of the Council, shall evaluate the request for designation and the eligibility of each trail according to the criteria at N.J.A.C. 7:5D-5.1 and this section. If the Division determines that the trail meets the qualifications for designation and the criteria for eligibility, the Division shall prepare a recommendation for the Commissioner's review evaluating the proposed trail's suitability for designation and recommending that the Commissioner approve or disapprove the proposed trail designation.

(c) The Commissioner shall review all trail designation recommendations submitted by the Division and shall take one of the following actions on each proposal:

1. Propose the trail designation and designated uses of the trail as an amendment to N.J.A.C. 7:7D-8.1;

2. Request that the Division reconsider its recommendations and resubmit the proposal to the Commissioner's review; or

3. Reject the proposed trail designation.

(d) A proposal to designate a trail to the System shall be based on the following eligibility criteria:

1. Scenic Quality: The presence of high quality or rare natural features, vistas, historical or cultural features or other points of interest that can be signed or visited along the trail;

2. Accessibility: The availability of access points for vehicles, trailers or disabled trail users along or adjacent to the trail right-of-way. Water trail rights-of-way shall have public access at both ends of the trail and at areas where portage is required;

3. Length: Trails shall be a minimum of five miles in length to be eligible for consideration as scenic trails, but this criterion may be satisfied by segments or components of a group of trails totalling five miles or more. Recreation or connecting trails are not subject to a length criterion;

4. Multiple Use: Trails which are managed in a safe and environmentally protective manner to accommodate more than one type of trail use are preferred for designation to those which can support only a single use;

5. Development and Maintenance Costs: Trails which require little capital development or reconstruction of areas critical to the purpose of the trail are preferred to those which require extensive time and cost to develop and maintain;

6. Public Support: Public input and recommendations from counties, municipalities, private citizens' groups or other persons indicating endorsement of or opposition to future trail designation; and

7. Environmental Impact: Trail development will cause minimal erosion or destruction of plant, animal, historic or cultural resources unless no alternative routes are available.

(e) Eligibility for designation to the system shall be determined by the Department based on the submittal of the following documentation:

1. A written narrative description of the trail area and trail right-of-way, including a description of the length, surrounding land use, physical condition, and need for land acquisition and/or development for the proposed trail, and a description of public support of or opposition to the proposed trail;

2. A United States Geological Survey 7.5 minute quadrangle map marked to show the location of the proposed trail;

3. A written evaluation of whether the proposed trail should be designated as a scenic trail, recreation trail or connecting trail as set forth at N.J.A.C. 7:5D-4;

4. A written statement of how the proposed trail meets the qualifications for designation under N.J.A.C. 7:5D-5.1 and the criteria for eligibility under N.J.A.C. 7:5D-5.2(c);

5. A listing and justification of proposed uses for the trail upon designation; and

6. If the person proposing the trail designation is not the administering agency for the trail, a letter from the administering agency supporting the designation proposal.

History

• Amended by R.2000 d.156, effective 4/17/2000.
• See: 32 N.J.R. 348(a), 32 N.J.R. 1380(c).
• Rewrote the section.
• Amended by R.2011 d.104, effective 4/4/2011.
• See: 42 N.J.R. 2357(a), 43 N.J.R. 832(a).
• In (a), updated the address.

N.J. Admin. Code § 7:5D-5.3 Reserved

History

• Repealed by R.2000 d.156, effective 4/17/2000.
• See: 32 New Jersey Register 348(a), 32 New Jersey Register 1380(c).
• Section was "Trail designation procedure".

N.J. Admin. Code § 7:5D-5.4 Repeal of trail designation

(a) If at any time after the designation of a trail to the System the Department determines that the trail is not meeting its designated uses and/or management objectives and that mitigation measures are not available to bring the trail into conformance with its designated uses and/or management objectives, the Department may propose to repeal the designation of the trail to the System.

(b) The procedure for repealing the designation of a trail to the System is as follows:

1. If the Division makes a preliminary determination that the designation of a trail to the System should be repealed, it shall conduct a site evaluation of the trail to determine the extent of the trail deterioration, change of use, or unsuitability;

2. Upon completion of the site evaluation, the Division shall submit the site evaluation to the administering agency for a determination of whether mitigation measures are available to bring the trail into conformance with its designated uses and/or management objectives;

3. The Division, with the advice of the Council, shall review the administering agency's determination under (b)2 above, and if appropriate, shall recommend repeal of the trail designation to the Commissioner;

4. The Commissioner shall review all trail designation repeal recommendations submitted by the Division and shall take one of the following actions on each proposal:

i. Propose the trail repeal as an amendment to N.J.A.C. 7:5D-8.1;

ii. Request that the Division reconsider its recommendation and resubmit the proposal for the Commissioner's review, if appropriate; or

iii. Reject the proposed repeal of the trail designation.

Subchapter 6 TRAILS MANAGEMENT

N.J. Admin. Code § 7:5D-6.1 Trails management

(a) Except as provided under (g) below and under N.J.A.C. 7:5D-7.1(g), all uses of a trail right-of-way that are inconsistent with the uses specified by the Department upon designation of the trail to the System are prohibited without prior approval by the Department.

(b) Upon designation of a trail to the System, the administering agency, in coordination with the Department and with the advice of the Council, shall prepare a management plan for the trail right-of-way.

(c) Management objectives to be addressed through preparation of a trail management plan include:

1. Management of scenic trails primarily to protect and enhance their natural and scenic qualities;

2. Protection of the natural vegetation of trail rights-of-way. Clearing of vegetation shall be permitted for public safety, trail construction, creation of occasional vistas, construction or maintenance of trail use facilities or other natural resource management that does not adversely affect the trail right-of-way or its designated uses and/or management objectives;

3. Development of multiple compatible trail uses which allow convenient exits and entrances. Special consideration shall be given to identifying trail segments and access points appropriate for the needs of disabled trail users and conducting planning to meet any applicable guidelines and/or requirements under the ADA;

4. Full consideration of and coordination with adjacent landowners and their operations in order to minimize potential adverse effects on these owners from trail use;

5. Identification of pre-existing trail uses that are inconsistent with the nature of the trail and its designated uses and/or management objectives, and evaluation of techniques to mitigate their impact;

6. Description of erosion control measures, if necessary, taking into account the designated uses of the trail and preservation of the natural environment; and

7. Identification of parking or other ancillary facilities necessary to support the classification and uses of the trail.

(d) The administering agency shall be responsible for the initial development and continued maintenance of a designated trail. The management techniques employed by the administering agency shall be compatible with the trail classification and the purposes for which the trail was designated. The administering agency may allow uses of the trail other than the designated uses only with the prior approval of the Department.

(e) In developing a trails management plan, the administering agency shall solicit the advice of the local unit(s) with jurisdiction over the area(s) through which the trail passes.

(f) The administering agency is encouraged to solicit advice on trail design and management, and assistance for routine trail maintenance, from volunteers and user groups.

(g) The administering agency shall cooperate to the fullest extent possible with the owner of the trail right-of-way in complying with the requirements of the ADA, as applicable.

(h) Emergency vehicles and authorized maintenance vehicles shall be permitted access to designated trails for emergency and management purposes.

(i) The Department shall provide administering agencies with standardized trail head signs for posting.

1. The administering agency shall place and maintain signs at trail entrances, exits, and other strategic points to indicate that a trail is a component of the System.

(j) The Department will inspect each designated trail at least every two years, with the cooperation and assistance of the administering agency. If the Department determines that the trail is not meeting one or more of its designated uses and/or management objectives, it may authorize the administering agency to undertake mitigation measures, including temporary prohibition of one or more trail uses. If the Department determines that mitigation measures are not available to bring the trail into conformance with its designated uses and/or management objectives, it may recommend repeal of the trail designation in accordance with the procedure at N.J.A.C. 7:5D-5.4.

Subchapter 7 DEPARTMENT-FUNDED CONSTRUCTION PROJECTS AFFECTING DESIGNATED TRAILS

N.J. Admin. Code § 7:5D-7.1 Review of Department-funded construction projects affecting designated trails

(a) The Department shall assess all proposed construction projects partially or wholly funded by the Department that temporarily or permanently cross, directly border upon, or interrupt use of a designated trail right-of-way or its facilities to determine the project's potential impact on the trail, trail users, associated facilities and adjacent property owners.

(b) It is the Department's policy to incorporate, through a memorandum of understanding if appropriate, an informal analysis of the impact of a proposed project on designated trails into its review of non-Department-funded construction projects under its other regulatory programs. The Department may require permittees to take measures to mitigate the impact of proposed projects on designated trails if such measures are consistent with the statutory and regulatory authority governing the permit program.

(c) The Department's review under (a) or (b) above shall assess the following:

1. The location and nature of the proposed project, including the length of time the project is expected to be under construction;

2. The potential impacts of the proposed project on the trail, including, but not limited to, soil erosion, sediment deposition, degradation of water quality, flooding, safety and health hazards, destruction or degradation of natural, historic or cultural resources, or disruption of scenic values; and

3. Proposed or potential methods for mitigating or remediating the proposed project's impacts on the trail.

(d) The Division, with the advice of the Council, shall review a proposed Department-funded construction project within 90 days of receipt of the project plans from the Department's funding program and shall provide a recommendation on the proposed project to the Commissioner.

(e) The Commissioner shall review the recommendation of the Division made under (d) above and shall take one of the following actions on the recommendation:

1. If the Commissioner determines that the proposed Department-funded construction project will temporarily interfere with the trail right-of-way, the Commissioner may require, as a condition of Department funding, mitigation measures to maintain or relocate the trail and its facilities in a manner consistent with the designated classification of the trail during the period of construction or permanently thereafter; or

2. If the Commissioner determines that the proposed Department-funded construction project will permanently interfere with the trail right-of-way or its uses, thereby rendering the trail unsuitable for its designated purposes, and that no satisfactory remediation or mitigation is possible, the Commissioner may disapprove use of the trail for the proposed project. Remediation for permanent interference with the trail right-of-way may include relocation of the trail right-of-way in a manner consistent with N.J.A.C. 7:5D-5.1 and 5.2.

(f) Emergency measures to protect public health, safety and welfare may be undertaken in the trail right-of-way without prior review by the Department. However, persons or organizations undertaking such measures must notify the Division in writing within 24 hours of commencing such measures.

Subchapter 8 STATE TRAILS SYSTEM

N.J. Admin. Code § 7:5D-8.1 State Trails System

(a) The following trails are designated as components of the State Trails System:

1. Appalachian Trail:

i. Location: Extending approximately 70 miles from the Delaware Water Gap to the New York New Jersey border in Abram S. Hewitt State Forest.

ii. Administering Agency: Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites; United States Department of Interior, National Park Service, for the part in Delaware Water Gap National Recreation Area.

iii. Permitted Trail Uses: Hiking; sections suitable for cross-country skiing and snowshoeing when snow covered.

iv. Trail Class: Scenic

v. Significance: The Appalachian Trail is a National Scenic Trail, following the ridges and valleys of the Appalachian Mountain System from Maine to Georgia. The New Jersey section passes through a variety of upland and lowland landscapes in Warren, Sussex and Passaic counties. Numerous side trails connect with the Appalachian Trail.

2. Batona Trail:

i. Location: Extending approximately 49 miles in Brendan T. Byrne State Forest, New Lisbon, to Bass River State Forest, New Gretna, Burlington County.

ii. Administering Agency: New Jersey Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Hiking; sections suitable for cross-country skiing and snowshoeing when snow covered.

iv. Trail Class: Scenic

v. Significance: The Batona Trail passes through a variety of Pine Barrens upland and lowland landscapes, connecting Brendan T. Byrne, Wharton and Bass River State Forests.

3. Delaware and Raritan Canal State Park:

i. Location: Extending approximately 70 miles from New Brunswick to Lawrence, and from Trenton to Frenchtown, passing through Mercer, Hunterdon, Somerset and Middlesex counties.

ii. Administering Agency: New Jersey Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Hiking, bicycling, cross-country skiing and snowshoeing throughout the entire length; horseback riding on the Main Canal section. Canoeing and kayaking are permitted in the canal.

iv. Trail Class: Recreation.

v. Significance: Delaware and Raritan Canal State Park includes a canal and towpath of the Delaware and Raritan Canal, and the former right-of-way of the BelDel Railroad. The park is listed as a National Recreation Trail. It is also listed on the National Register of Historic Places and has numerous historic structures and buildings associated with it.

4. Paulinskill Valley Trail:

i. Location: Lands owned by the Department extending approximately 27 miles from Knowlton to Sparta Junction.

ii. Administering Agency: New Jersey Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Hiking, cross-country skiing, snowshoeing, bicycling, dog-sledding, horseback riding and carriage driving.

iv. Trail Class: Recreation.

v. Significance: The trail is designed to provide a variety of trail activities. It passes through a variety of rural and wooded landscapes in Sussex and Warren counties, and contains significant cultural features as an abandoned right-of-way of the former New York Susquehanna and Western Railroad. It intersects the Sussex Branch Trail and is managed by Kittatinny Valley State Park.

5. Sussex Branch Trail:

i. Location: Lands owned by the Department extending 20 miles from Netcong to Branchville, in Morris and Sussex counties.

ii. Administering Agency: New Jersey Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Hiking, cross-country skiing, snowshoeing and bicycling for its entire length; dog-sledding, horseback riding, and carriage driving from Andover to Branchville.

iv. Trail Class: Recreation.

v. Significance: The Sussex Branch Trail passes through a variety of landscapes in Sussex and Morris counties and contains significant natural features. It was an abandoned right-of-way of the former Erie Lackawanna Railroad and is now managed by Kittatinny Valley and Hopatcong State parks. The Sussex Branch Trail is designed to provide a variety of trail activities and access to several other outdoor recreational activities at Kittatinny Valley State Park and Allamuchy Mountain State Park.

6. Belleplain State Forest Trail System:

i. Location: Upper and Dennis townships, Cape May County and Maurice River Township, Cumberland County.

ii. Administering Agency: New Jersey Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Hiking, horseback riding, bicycling, cross-country skiing, snowshoeing and motorized use of registered vehicles on designated trails.

iv. Trail Class: Recreation.

v. Significance: Belleplain State Forest offers a variety of trail opportunities on over 15,600 acres of predominantly Pine Barrens forest, including a trail for the visually impaired.

7. Cedar Creek:

i. Location: Ocean County, from Dover Forge in Double Trouble State Park to Route 9.

ii. Permitted Trail Uses: Canoeing and kayaking.

iii. Trail Class: Recreation.

iv. Significance: Cedar Creek provides an appreciation of ecosystems of the Pinelands, in a slow winding course. The river passes through Double Trouble State Park and the village of Double Trouble, a National Historic District.

8. Wells Mills County Park Trails System:

i. Location: Ocean Township, Ocean County.

ii. Administering Agency: Ocean County Parks and Recreation Department.

iii. Permitted Trail Uses: Hiking, cross-country skiing, snowshoeing and bicycling on designated trails.

iv. Trail Class: Recreation.

v. Significance: The park includes Pine Barrens upland oak-pine forests and lowland habitats, including Atlantic white cedar swamps. The park also includes a trail for the visually impaired, nature center, picnic area, and canoe rental for fishing and canoeing on Wells Mills Lake.

9. Wharton Water Trails:

i. Location: Burlington and Atlantic counties, within Wharton State Forest.

ii. Administering Agency: All portions of adjacent land to the rivers are within Wharton State Forest, administered by the Department of Environmental Protection, Division of State Parks, Forests, and Historic Sites.

iii. Permitted Trail Uses: Canoeing and kayaking.

iv. Trail Class: Recreation.

v. Significance: Wharton Water Trails form a network of pristine Pine Barrens water trails all converging into the Mullica River. The Lower Atsion, Batsto, Oswego and Wading rivers total 52 miles of slow-moving waterways that are available for canoeing and kayaking. The Lower Atsion is New Jersey's only designated Wild and Scenic River.

History

• Amended by R.2000 d.156, effective 4/17/2000.
• See: 32 New Jersey Register 348(a), 32 New Jersey Register 1380(c).
• In (a), added 1 through 9.
• Amended by R.2005 d.337, effective 10/3/2005.
• See: 37 New Jersey Register 1111(a), 37 New Jersey Register 3812(c). Rewrote (a).

N.J. Admin. Code § 7:5D-8.2 Public information

Interested persons may obtain information on the State Trails System by contacting:

Green Acres Program

Department of Environmental Protection

Mailcode 401-07B

PO Box 420

Trenton, New Jersey 08625-0420

(609) 984-0500

trails@dep.nj.gov

History

• Amended by R.2000 d.156, effective 4/17/2000.
• See: 32 N.J.R. 348(a), 32 N.J.R. 1380(c).
• Amended by R.2005 d.337, effective 10/3/2005.
• See: 37 N.J.R. 1111(a), 37 N.J.R. 3812(c).
• Added email address to contact information.
• Amended by R.2011 d.104, effective 4/4/2011.
• See: 42 N.J.R. 2357(a), 43 N.J.R. 832(a).
• Updated the address.

Chapter 7 COASTAL ZONE MANAGEMENT RULES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 7:7-1.1 Purpose

(a) This chapter establishes the rules of the Department regarding the use and development of coastal resources. The rules are used in reviewing applications for coastal permits under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (CAFRA permits), the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq. (coastal wetlands permits), and the Waterfront Development Law, N.J.S.A. 12:5-3 (waterfront development permits). The rules are also used in the review of water quality certificates subject to Section 401 of the Federal Clean Water Act, 33 U.S.C. § 1341, and Federal consistency determinations under Section 307 of the Federal Coastal Zone Management Act, 16 U.S.C. § 1456. The rules also provide a basis for recommendations by the Program to the Tidelands Resource Council on applications for riparian grants, leases, and licenses.

(b) The Department interprets the "public health, safety, and welfare" clause in CAFRA (N.J.S.A. 13:19-10.f) and the Wetlands Act of 1970 (N.J.S.A. 13:9A-4.d) as providing for full consideration of the national interest in the wise use of coastal resources as required under the Federal Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.).

(c) Both the New Jersey Coastal Management Program and the Coastal Zone Management Rules are founded on the eight broad coastal goals described at (c)1 through 8 below. The coastal goals express results that the New Jersey Coastal Management Program strives to attain. Each goal is supplemented by related policies that set forth the means to realize that goal. The Coastal Zone Management Rules, including the coastal goals and policies set forth below, are enforceable policies of the New Jersey Coastal Management Program as approved under the Federal Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.). The New Jersey Coastal Management Program goals and supplemental policies are:

1. Healthy coastal ecosystems.

i. Protect, enhance and restore coastal habitats and their living resources to promote biodiversity, water quality, aesthetics, recreation and healthy coastal ecosystems; and

ii. Manage coastal activities to protect natural resources and the environment;

2. Effective management of ocean and estuarine resources.

i. Develop and implement management measures to attain sustainable recreational and commercial fisheries;

ii. Manage commercial uses to reduce conflict between users and encourage water-dependent uses; and

iii. Administer the safe and environmentally sound use of coastal waters and beaches to protect natural, cultural and aesthetic resources, promote safe navigation, and provide recreational opportunities;

3. Meaningful public access to and use of tidal waterways and their shores.

i. Preserve public trust rights to tidal waterways and their shores;

ii. Preserve and enhance views of the coastal landscape to enrich aesthetic and cultural values and vital communities;

iii. Conserve and increase safe, environmentally sound, and meaningful public access from both the land and water to the tidal waterways and their shores for recreation and aesthetic experiences;

iv. Enhance public access by promoting adequate affordable public facilities and services;

v. Balance diverse uses of tidal waterways and their shores; and

vi. Protect, enhance and promote waterfront parks;

4. Sustained and revitalized water-dependent uses.

i. Encourage, sustain and enhance active port and other water-dependent facilities, and maritime uses;

ii. Encourage the redevelopment of inactive and under-utilized waterfront facilities for port, water-dependent and maritime uses;

iii. Conserve waterfront sites for water-dependent activities; and

iv. Manage dredging in an environmentally sound manner, promote environmentally sound and economically feasible dredged material management practices and preserve historic dredged material placement sites;

5. Coastal open space.

i. Preserve, enhance and restore open space including natural, scenic, historic and ecologically important landscapes that:

(1) Provide opportunities for passive and active recreation;

(2) Protect valuable wildlife and plant habitats and ecosystem health, foster aesthetic and cultural values;

(3) Minimize natural hazards; and

(4) Abate impacts from nonpoint sources of pollution;

ii. Promote and enhance public access to and use of open space where appropriate; and

iii. Promote strategies for the creation of open space;

6. Safe, healthy and well-planned coastal communities and regions.

i. Manage coastal activities and foster well-planned communities and regions that:

(1) Encourage mixed-use redevelopment of distressed waterfront communities including underutilized, abandoned and contaminated sites;

(2) Promote concentrated patterns of development;

(3) Ensure the availability of suitable waterfront areas for water dependent activities;

(4) Sustain coastal economies;

(5) Create vibrant coastal communities and waterfronts;

(6) Conserve water supply;

(7) Protect the natural environment;

(8) Minimize the threat of natural hazards to life and property;

(9) Provide meaningful public access to tidal waterways and their shores; and

(10) Preserve and restore significant historic and cultural resources and aesthetic coastal features;

ii. Maintain, enhance and encourage maritime uses;

iii. Preserve and enhance beach and dune systems and wetlands, and manage natural features to protect the public from natural hazards;

iv. Promote public health, safety and welfare;

v. Promote and implement strategies for the development of hazard mitigation plans; and

vi. Promote and implement strategies that eliminate or reduce risks to human health and the ecosystem from coastal activities;

7. Coordinated coastal decision-making, comprehensive planning and research.

i. Promote the attainment of the New Jersey Coastal Management Program goals by encouraging other government agencies to employ the policies which supplement the goals;

ii. Encourage incorporation of the coastal goals and supplemental policies into State, regional and municipal land use management, funding and acquisition programs within the coastal zone;

iii. Coordinate cooperative government sponsored and academic coastal research and information dissemination to foster informed decision-making;

iv. Ensure opportunities for public participation in coastal decision-making;

v. Encourage the preparation of comprehensive plans, including:

(1) Land acquisition plans that further the goals and supplemental policies of New Jersey's Coastal Management Program; and

(2) Special area management plans that protect significant natural resources and provide the opportunity for sound coastal dependent economic development; and

8. Coordinated public education and outreach.

i. Coordinate education and outreach activities on coastal issues; and

ii. Encourage coastal related education and participation opportunities for the public.

(d) The coastal land and water areas of New Jersey are diverse. The Coastal Zone Management rules address a wide range of land and water types (locations), current and potential land and water uses, and natural, cultural, social and economic resources in the coastal zone. In developing these rules, balances were struck among various conflicting, competing, and contradictory local, State, and national interests in coastal resources and in uses of coastal locations. This balancing and conflict-reducing approach reflects that coastal management involves consideration of a broad range of concerns in contrast to other resource management programs which are more limited in scope.

(e) The location rules (N.J.A.C. 7:7-9 through 14), use rules (N.J.A.C. 7:7-15), and resource rules (N.J.A.C. 7:7-16) stem from the coastal goals at (c) above. The Department does not expect each proposed use of coastal resources to involve all location rules, use rules, and resource rules. Decision-making on proposed actions involves examining, weighing, and evaluating complex interests using the framework provided by this chapter. The Coastal Zone Management Rules provide a mechanism for integrating professional judgment by Department officials, as well as recommendations and comments by applicants, public agencies, specific interest groups, corporations, and citizens into the coastal decision-making process. In this process, interpretations of terms, such as "prudent," "feasible," "minimal," "practicable," and "maximum extent," as used in a rule or a combination of rules, may vary depending upon the context of the proposed use, location, and design.

History

• Renumbered from N.J.A.C. 7:7E-1.1 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.2 Scope

(a) This chapter shall apply to actions and decisions by the Department, as described at (d) through (h) below, on uses and development of coastal resources within or affecting the coastal zone, which is described at (b) below.

(b) This chapter shall apply geographically to the New Jersey coastal zone, which comprises:

1. The CAFRA area;

2. Coastal waters, which are any tidal waters of the State and all lands lying thereunder. Coastal waters of the State of New Jersey extend from the mean high water line out to the three-geographical-mile limit of the New Jersey territorial sea, and elsewhere to the interstate boundaries of the States of New York, and Delaware and the Commonwealth of Pennsylvania, except as provided at (c) below;

3. All lands outside of the CAFRA area extending from the mean high water line of a tidal water body to the first paved public road, railroad, or surveyable property line existing on September 26, 1980, generally parallel to the waterway, provided that the landward boundary of the upland area shall be no less than 100 feet and no more than 500 feet from the mean high water line;

4. All areas containing tidal wetlands; and

5. The Hackensack Meadowlands District as defined by N.J.S.A. 13:17-4.

(c) In accordance with the decree of the United States Supreme Court in State of New Jersey v. State of Delaware , 552 U.S. 597, 623-24 (2008), the State of New Jersey may, under its laws, grant and thereafter exercise governing authority over ordinary and usual riparian rights for the construction, maintenance, and use of wharves and other riparian improvements appurtenant to the eastern shore of the Delaware River within the 12-mile circle and extending outshore of the low-water mark. The 12-mile circle is the circle the radius of which is 12 miles, and the center of which is the building used prior to 1881 as the courthouse at New Castle, Delaware, the arcs of which are as set forth in the decree of the United States Supreme Court in New Jersey v. Delaware , 295 U.S. 694 (1935).

1. The State of Delaware may, under its laws and subject to New Jersey's authority over riparian rights as stated at (c) above, exercise governing authority over the construction, maintenance, and use of those same wharves and other improvements appurtenant to the eastern shore of the Delaware River within the 12-mile circle and extending outshore of the low-water mark, to the extent that they exceed ordinary and usual riparian uses.

(d) This chapter shall apply to all coastal permits.

(e) This chapter shall apply to decisions on the consistency or compatibility of proposed actions by Federal, State, and local agencies within or affecting the coastal zone, including, but not limited to Federal consistency determinations, determinations of consistency or compatibility under the Federal Coastal Zone Management Act, comments on Draft and Final Environmental Impact Statements prepared under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and comments on other public and private plans, programs, projects, and policies. This chapter shall also apply to decisions on proposed activities that require a water quality certificate. Requests for water quality certificates shall also be reviewed in accordance with all applicable statutes and regulations administered by the Department including the Surface Water Quality Standards, N.J.A.C. 7:9B.

1. An activity requiring a Federal consistency determination may also require a coastal permit. In this instance, the coastal permit is the Federal consistency determination.

2. An activity requiring a water quality certificate may also require a coastal permit. In this instance, the coastal permit will include the water quality certificate.

3. A water quality certificate not issued in conjunction with a coastal permit shall be valid for five years from the date of issuance or for the duration of the underlying Federal permit (without renewals), whichever period is shorter.

4. A Federal consistency determination or a water quality certificate issued in conjunction with an authorization under a coastal general permit-by-certification or a general permit shall be valid for the duration of that authorization.

5. A Federal consistency determination issued in conjunction with an individual coastal permit shall be valid for the duration of that individual permit.

(f) This chapter shall apply to State aid financial assistance decisions by the Department under the Shore Protection Program and Green Acres Program within the coastal zone, to the extent permissible under existing statutes and regulations.

(g) This chapter shall apply, to the extent statutorily permissible, to Department management actions, including permit decisions, approvals, certifications, conveyances, and compliance activities, in or affecting the coastal zone.

(h) This chapter shall provide the basic policy direction for planning actions undertaken by the Department in the coastal zone as the lead state agency for Coastal Management under Section 306 of the Federal Coastal Zone Management Act.

History

• Renumbered from N.J.A.C. 7:7E-1.2 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.3 Review, revision, and expiration

As provided by the Federal Coastal Zone Management Act, the Department shall periodically review the rules and revise, amend, or readopt the rules in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

History

• Renumbered from N.J.A.C. 7:7E-1.4 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.4 Standards for evaluating permit applications

(a) All applications for coastal permits shall be approved, conditionally approved, or denied pursuant to this chapter.

(b) The Department shall issue a permit pursuant to CAFRA only upon a finding as required by N.J.S.A. 13:19-10 that the development:

1. Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards;

2. Prevents air emissions and water effluents in excess of the existing dilution, assimilative and recovery capacities of the air and water environments at the site and within the surrounding region;

3. Provides for the collection and disposal of litter, recyclable and solid waste in such a manner as to minimize adverse environmental effects and the threat to the public health, safety and welfare;

4. Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies;

5. Would cause minimal feasible interference with the natural functioning of plant, animal, fish and human life processes at the site and within the surrounding region;

6. Is located or constructed so as to neither endanger human life or property nor otherwise impair the public health, safety and welfare;

7. Would result in minimal practicable degradation of unique or irreplaceable land types, historical or archaeological areas and existing public scenic attributes at the site and within the surrounding region; and

8. Provides, pursuant to standards established in this chapter, on-site public access to the waterfront and adjacent shoreline, or offsite public access to the waterfront and adjacent shoreline if onsite public access is not feasible as determined by the Department.

History

• Amended by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.5 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions specifically applicable to N.J.A.C. 7:7-13, Requirements for Impervious Cover and Vegetative Cover for General Land Areas and Certain Special Areas, are set forth at N.J.A.C. 7:7-13.2. Additional definitions specifically applicable to N.J.A.C. 7:7-17, Mitigation, are set forth at N.J.A.C. 7:7-17.1.

"Acceptable" means that a proposed use of coastal resources is likely to be approved.

"Administratively complete" means that every item required on the application checklist for the coastal permit being sought is included in the application.

"Amusement pier" means an elevated, pile-supported structure located on a beach and/or tidal water, seaward of a bulkhead or boardwalk, and perpendicular to the mean high water line, on which amusements are located. For purposes of this definition, "amusements" includes rides, games of skill or chance for prizes other than cash payoffs, and vendors of toys and/or other merchandise. "Amusements" also means bar and restaurant establishments and entertainment venues such as stage and band shells and associated seating areas. "Amusements" do not include games for cash payoffs.

"Area" means "site," as defined elsewhere in this section.

"Beach" means the special area described at N.J.A.C. 7:7-9.22(a).

"Beach berm" means the nearly horizontal part of the beach lying between the crest of the berm and the toe of the primary dune or first paved public right-of-way, whichever is more waterward. The berm is the sloping portion of the beach profile from the upper limit of wave up-rush to the lower limit of wave run-down at low tide.

"Bulkhead" means a vertical shore protection structure installed to withstand the forces of waves and currents. A bulkhead is not a "revetment" or a "gabion" as defined elsewhere in this section.

"CAFRA" means the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq.

"CAFRA area" means the "coastal area" defined in CAFRA at N.J.S.A. 13:19-4.

"Charitable conservancy" means a corporation or trust that meets the definition of a charitable conservancy at N.J.S.A. 13:8B-2. (Note: As of July 6, 2015, the definition of charitable conservancy at N.J.S.A. 13:8B-2 is a corporation or trust whose purposes include the acquisition and preservation of land or water areas or of a particular land or water area, or either thereof, in a natural, scenic or open condition, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and which has received tax exemption under section 501(c) of the 1954 Internal Revenue Code.)

"City of the fourth class" means a city as defined at N.J.S.A. 40A:6-4d which borders on the Atlantic Ocean and which is a seaside or summer resort.

"Coastal bluff" means the special area described at N.J.A.C. 7:7-9.29(a).

"Coastal permit" or "permit" means a permit or an authorization issued under this chapter pursuant to CAFRA, the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq., or the Waterfront Development Law, N.J.S.A. 12:5-3.

"Coastal zone" means the areas described at N.J.A.C. 7:7-1.2(b).

"Commercial development" means a development designed, constructed, or intended to accommodate commercial, retail, or office uses. "Commercial development" shall include, but need not be limited to, any establishment used for the wholesale or retail sale of food, beverage, or other merchandise, or any establishment used for providing professional, financial, or other commercial services.

"Commissioner" means the Commissioner of the Department, or designated representative.

"Complete for public comment" means that an application for a CAFRA individual permit is both administratively and technically complete and is ready for the public comment process set forth at N.J.A.C. 7:7-26.4.

"Complete for public hearing" means that an application for a CAFRA individual permit is both administratively and technically complete and is ready for the public hearing and comment process set forth at N.J.A.C. 7:7-26.5.

"Complete for review" means that an application for a coastal permit is both administratively and technically complete and is ready to be evaluated by the Department for compliance with the applicable requirements of this chapter. However, an application for a CAFRA individual permit is complete for review only when it is both administratively and technically complete and either the public comment process set forth at N.J.A.C. 7:7-26.4 or the public hearing and comment process set forth at N.J.A.C. N.J.A.C. 7:7-26.5 has been completed.

"Conditionally acceptable" means that a proposed use of coastal resources is likely to be acceptable, provided that conditions specified in the rules are satisfied.

"Conservation restriction" means a restriction, easement, covenant, or condition, in any deed, will or other instrument, other than a lease, executed by or on behalf of the owner of the land, appropriate to retaining land or water areas predominantly in their natural state, scenic or open or wooded condition, or for conservation of soil or wildlife, or for outdoor recreation or park use, or for public access to tidal waterways and their shores, or as suitable habitat for fish or wildlife, to forbid or limit any or all of the following:

1. Construction or placing of buildings, roads, signs, billboards or other advertising, or other structures on or above the ground;

2. Dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials;

3. Removal or destruction of trees, shrubs or other vegetation;

4. Excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance;

5. Surface use except for the purposes permitting the land or water area to remain predominantly in its natural condition;

6. Activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or fish and wildlife habitat preservation; and/or

7. Other acts or uses detrimental to the retention of land or water areas according to the purposes of this chapter.

"Deck" means a horizontal platform that is not enclosed by windows, walls, doors, or screens and is not covered by a roof.

"Department" means the Department of Environmental Protection.

"Development" means any activity for which a coastal wetlands permit, waterfront development permit, or Federal consistency determination is required, including site preparation and clearing. Development for an application under CAFRA means the construction, relocation, or enlargement of the footprint of development of any building or structure and all site preparation therefor, the grading, excavation, or filling on beaches and dunes, and shall include residential development, commercial development, industrial development, and public development. Development under CAFRA and the Waterfront Development Law does not include repairs or maintenance such as replacing siding, windows, or roofs, unless such repairs or maintenance are associated with enlargements which are not exempt under CAFRA pursuant to N.J.A.C. 7:7-2.2(c)4 or the Waterfront Development Law pursuant to N.J.A.C. 7:7-2.4(d). Development under CAFRA does not include debris removal or cleanup provided such activities do not involve excavation, grading, or filling on beaches and dunes.

"Discouraged" means that a proposed use of coastal resources is likely to be rejected or denied as the Department has determined that such uses of coastal resources should be deterred. In cases where the Department considers the proposed use to be in the public interest despite its discouraged status, the Department may permit the use provided that mitigating or compensating measures can be taken so that there is a net gain in quality and quantity of the coastal resource of concern.

"Division" means the Division of Land Use Regulation in the Department.

"Dredged material" means the sediment removed from below the spring high water line. In accordance with the Solid Waste rules at N.J.A.C. 7:26-1.6, dredged material is not considered a solid waste.

"Dredging" means the removal of sediment located waterward of the spring high water line. Dredging does not include excavation.

"Dune" means the special area described at N.J.A.C. 7:7-9.16(a).

"Duplex" means a residential structure of two attached units in which the interior living space of one unit directly abuts the interior living space of the other unit, either in a side-by-side arrangement sharing a common wall or in a lower unit-upper unit arrangement.

"Dwelling unit" means a house, townhouse, apartment, cooperative, condominium, cabana, hotel or motel room, a patient/client room in a hospital, nursing home or other residential institution, mobile home, campsite for a tent or recreational vehicle, floating home, or any other habitable structure of similar size and potential environmental impact, except that dwelling unit shall not mean a vessel as defined at N.J.S.A. 12:7-71.

"Electrical substation" means a subsidiary facility of an electric power system through which electricity is passed for transmission, transformation, or distribution. For example, an electrical substation may transform high voltage electricity to low voltage electricity for distribution. An electrical substation consists of the footprint of the substation equipment, the safety zone, and the area necessary for access and parking.

"Encouraged" means that a proposed use of coastal resources is acceptable and is a use, by its purpose, location, design, and effect, that the Department has determined should be fostered and supported in the coastal zone.

"Engineered beach" means a beach built in accordance with either:

1. A Federally authorized beach berm design template for shore protection and/or storm damage reduction purposes for which the Department has issued a Federal consistency determination under this chapter; or

2. A beach berm design template for shore protection and/or storm damage reduction purposes that has been funded through the New Jersey Shore Protection Program and for which the Department has issued a permit under this chapter.

For purposes of this definition, the beach berm design template is the height, width, slope, and length of the engineered beach.

"Engineered dune" means a dune built in accordance with either:

1. A Federally authorized dune design template for shore protection and/or storm damage reduction purposes for which the Department has issued a Federal consistency determination under this chapter; or

2. A dune design template for shore protection and/or storm damage reduction purposes that has been funded through the New Jersey Shore Protection Program and for which the Department has issued a permit under this chapter.

For purposes of this definition, the dune design template is the height, width, slope, and length of the engineered dune.

"Engineering certification" means a document, signed and sealed by a New Jersey licensed professional engineer, which confirms that one or more requirements of this chapter are met, and which is accompanied by all supporting documentation, calculations, and other information upon which the certification is based. Upon clear and compelling evidence of a threat to public health, safety, welfare, and the environment, a New Jersey licensed professional engineer employed by the Department can reject an engineering certification submitted under this chapter.

"Excavation" means the removal of soil or any other material located landward of the spring high water line.

"Federal consistency determination" means a determination by the Department of the consistency with this chapter of a proposed Federal action that has reasonably foreseeable effects on any land or water use or natural resource of the coastal zone pursuant to Section 307 of the Federal Coastal Zone Management Act, 16 U.S.C. § 1456. There are four types of Federal actions:

1. Federal agency activities, which are activities and development projects performed by a Federal agency, or a contractor for the benefit of the Federal agency;

2. Federal license or permit activities, which are activities performed by a non-Federal entity requiring a Federal permit, license, or other form of Federal authorization;

3. Outer Continental Shelf (OCS) Plans, which are the Department of the Interior, Bureau of Ocean Energy Management approvals of OCS plans, pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq.; and

4. Federal assistance to state and local governments, which are the applications for Federal financial assistance by state or local governments.

"FEMA" means the Federal Emergency Management Agency.

"FEMA flood mapping" means information published or publicly released by FEMA regarding the frequency, location, and/or extent of flooding in a community, such as flood elevations, flood profiles, flow rates, and floodway limits, and FEMA 100-year flood elevation as defined in the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13-1.2. For the purposes of this chapter, such information shall include only that information adopted as part of the most recent effective FEMA Flood Insurance Study, dated on or after January 31, 1980, or any more recent advisory or proposed (preliminary) flood mapping, if the more recent advisory or proposed (preliminary) mapping results in higher flood elevations, wider floodway limits, and greater flow rates, than depicted in the most recent effective FEMA Flood Insurance Study, or indicates a change from an A zone to a V zone or coastal A zone. Effective and proposed (preliminary) FEMA flood mapping can be viewed at https://msc.fema.gov and advisory flood mapping for coastal areas, where available, can be viewed at http://www.region2coastal.com. Questions regarding the availability, use, derivation, or modification of FEMA flood mapping should be directed to FEMA at (800) 358-9616.

"Filling" means the depositing of sand, gravel, earth or any other material.

"Floating home" means any waterborne structure designed and intended primarily as a permanent or seasonal dwelling, not for use as a recreational vessel, which will remain stationary for more than 10 consecutive days.

"Floodway" has the same meaning as the definition of that term in the Flood Hazard Area Control Act rules at N.J.A.C. 7:13-1.2.

"Footprint of development" means the vertical projection to the horizontal plane of the exterior of all exterior walls of a structure.

"Gabion" means a shore protection structure that is comprised of wire mesh basket(s) or mattress(es) filled with rock and used in multiples as a structural unit installed to withstand the forces of waves and currents. A gabion is not a "bulkhead" or a "revetment" as defined elsewhere in this section.

"Governmental agency" means the Government of the United States, the State of New Jersey, or any other state, or a political subdivision, authority, agency or instrumentality thereof, and shall include any interstate agency or authority.

"Grace period" means the period of time afforded under the Grace Period Law, N.J.S.A. 13:1D-125 et seq., for a person to correct a minor violation in order to avoid imposition of a penalty that would otherwise be applicable for such violation.

"Grading" means leveling off to a smooth horizontal or sloping surface.

"Habitable" with reference to structures or development means a structure or development that has been or could have been legally occupied in the most recent five-year period.

"Homeland security facility" means any facility deemed by the Department in consultation with the New Jersey Office of Homeland Security and Preparedness or the United States Department of Homeland Security to be either critical in nature or a key resource. These facilities may include, but are not limited to, airports and military facilities, certain transportation infrastructure, and certain chemical or energy facilities and utilities, marine terminal or transfer facilities, and freight or passenger rail lines.

"Impervious cover" means any structure, surface, or improvement that reduces and/or prevents absorption of stormwater into land. Porous paving, paver blocks, gravel, crushed stone, crushed shell, elevated structures (including boardwalks), and other similar structures, surfaces, or improvements are considered impervious cover. Grass, lawns, or any other vegetation are not considered impervious cover.

"Industrial development" means a development that involves a manufacturing or industrial process, and shall include, but is not limited to, electric power production, food and food by-product processing, paper production, agri-chemical production, chemical processes, storage facilities, metallurgical processes, mining and excavation processes, and processes using mineral products.

"Invasive plant species" means a plant species that is non-native (or alien) to the ecosystem under consideration and whose introduction causes or is likely to cause economic or environmental harm or harm to human health.

"Linear development" means a development with the basic function of connecting two points, such as a road, drive, public walkway, railroad, sewerage pipe, stormwater management pipe, gas pipeline, water pipeline, or electric, telephone or other transmission lines.

"Living shoreline" means a shoreline management practice that addresses the loss of vegetated shorelines, beaches, and habitat in the littoral zone by providing for the protection, restoration, or enhancement of these habitats. This is accomplished through the strategic placement of plants, stone, sand, or other structural and organic materials. There are three types of living shorelines: natural, hybrid, and structural. Natural living shorelines include natural vegetation, submerged aquatic vegetation, fill, and biodegradable organic materials. Hybrid living shorelines incorporate natural vegetation, submerged aquatic vegetation, fill, biodegradable organic materials, and low-profile rock structures such as segmented sills, stone containment, and living breakwaters seeded with native shellfish. Structural living shorelines include, but are not limited to, revetments, breakwaters, and groins.

"Location" means "site," as defined elsewhere in this section.

"Major commercial development" means a commercial development with a cumulative building area of greater than 100,000 square feet.

"Man-made lagoon" means an artificially created linear waterway sometimes branched, ending in a dead end with no significant upland drainage. Lagoons have been created through dredging and filling of wetlands, bay bottom and other estuarine water areas for the purpose of creating waterfront lots for residential development adjacent to the lagoon. A natural waterway which is altered by activities including, but not limited to, filling, channelizing, or bulkheading shall not be considered a man-made lagoon, nor shall a bulkheaded boatslip be considered a lagoon.

"Mean high water" is a tidal datum that is the arithmetic mean of the high water heights observed over a specific 19-year Metonic cycle (the National Tidal Datum Epoch). For the New Jersey coast, the two high waters of each tidal day are included in the mean. This datum is available from the Department, Bureau of Tidelands Management.

"Mean high water line" is the intersection of the land with the water surface at the elevation of mean high water. The elevation of mean high water varies along the oceanfront and the tidal bays and streams in the coastal zone.

1. For practical purposes, the mean high water line is often referred to as the "ordinary" high water line, which is typically identified as the limit of wet sand or debris line on a beach, or by a stain line on a bulkhead or piling. However, for the purpose of establishing regulatory jurisdiction pursuant to CAFRA and the Waterfront Development Law, the surveyed mean high water elevation will be used.

"Minor commercial development" means a commercial development with a cumulative building area of 100,000 square feet or less.

"Mitigation area" means the portion of a site or piece of property upon which mitigation is proposed or performed. If a mitigation area includes a wetland, a wetland buffer is included as part of the mitigation area in accordance with N.J.A.C. 7:7-17.14(b).

"Mitigation bank" means an operation in which wetlands, uplands, and/or other aquatic resources are restored, created, enhanced, or preserved by a mitigation bank operator, for the purpose of providing compensatory mitigation.

"Mooring" means the structure and/or water area adjacent to the structure where boats and/or jet skis are secured by cables, anchors, or lines. Examples of moorings that are structures include docks, jet ski drive-on docks, bulkheads, boat lifts, pilings, and buoys.

"Navigable" means waters that are deep enough and wide enough to afford passage to watercraft, including canoes or kayaks, at high tide. Navigability will also apply to areas upstream of obstructions (for example, culverts), provided that the water course is still tidally influenced in the upstream area.

"NOAA" means the National Oceanic and Atmospheric Administration.

"Non-polluting material" means a material such as plastic, natural cedar or other untreated wood, polymer coated pressure-treated wood, concrete, steel, or other inert products. Creosote and pressure-treated lumber (that is, treated with preservatives such as CCA-C, ACZA, CC, and ACQ) which is susceptible to leaching is not considered "non-polluting material."

"Non-waterward side of development" means the area of the site located landward of the line(s) drawn through point(s) of the footprint of the building closest to the water and parallel to the water body, which line extends to the property boundaries.

"Parcel" means the totality of all contiguous lots under common ownership on April 4, 2011.

"Person" means any corporation, corporate official, company, association, society, firm, partnership, individual, government agency, or joint stock company.

"Pesticide" means any substance defined as a pesticide pursuant to the provisions of N.J.A.C. 7:30.

"Porch" means a covered or uncovered entrance, directly connected to a residential dwelling.

"Prohibited" means that a proposed use of coastal resources is unacceptable and that the Department will use its legal authority to reject or deny the proposal.

"Property as a whole" means all property assembled as one investment or to further one development plan. The property as a whole may include more than one municipal tax block or lot. The property as a whole may also include blocks or lots that were previously sold or developed, if those blocks or lots and the remaining unsold or undeveloped blocks or lots were part of one investment or development plan. In determining the property as a whole in a particular case, the Department shall consider existing legal precedent regarding what constitutes "property as a whole" at the time of the determination.

"Public accessway" means a route that provides a means for the public to reach, pass along, and/or use lands and waters subject to public trust rights. Public accessways include streets, paths, trails, walkways, easements, paper streets, dune walkovers/walkways, piers and other rights-of-way.

"Public development" means a solid waste facility, including incinerators and landfills, wastewater treatment plant, public highway, airport including single or multi- air strips, an above or underground pipeline designed to transport petroleum, natural gas, or sanitary sewage, and a public facility, and shall not mean a seasonal or temporary structure related to the tourism industry, an educational facility or power lines. "Public development" does not have to be publicly funded or operated.

"Public highway" means a "public highway" as defined at N.J.S.A. 27:1B-3, namely public roads, streets, expressways, freeways, parkways, motorways, and boulevards, including bridges, tunnels, overpasses, underpasses, interchanges, rest areas, express bus roadways, bus pullouts and turnarounds, park-ride facilities, traffic circles, grade separations, traffic control devices, the elimination or improvement of crossings of railroads and highways, whether at grade or not at grade, and any facilities, equipment, property, rights-of-way, easements, and interests therein needed for the construction, improvement, and maintenance of highways.

"Public Trust Doctrine" means a common law principle that recognizes that the public has particular inalienable rights to certain natural resources. These resources include, but are not limited to, tidal waterways, the underlying submerged lands and the shore waterward of the mean high water line, whether owned by a public, quasi-public or private entity. In the absence of a grant from the State, submerged lands under tidal waterways and the shore of tidal waterways waterward of the mean high water line are owned by the State. Regardless of the ownership of these resources, under the Public Trust Doctrine, the public has rights of access to and use of these resources, as well as a reasonable area of shoreline landward of the mean high water line. Under the Public Trust Doctrine, the State is the trustee of these publicly owned resources and public rights for the common benefit and use of all people without discrimination. As trustee, the State has a fiduciary obligation to ensure that its ownership, regulation and protection of these properties and rights will safeguard them for the enjoyment of present and future generations. The public rights to use these resources extend both to traditional activities such as navigation and fishing, but also to recreational uses such as swimming, sunbathing, fishing, surfing, sport diving, bird watching, walking and boating. The specific rights recognized under the Public Trust Doctrine, a common law principle, continue to develop through individual court decisions. See, for example, Arnold v. Mundy, 6 N.J.L. 1 (1821), Borough of Neptune v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972), Hyland v. Borough of Allenhurst, 78 N.J. 190 (1978); Matthews v. Bay Head Improvement Association, 95 N.J. 306 (1984); Slocum v. Borough of Belmar, 238 N.J.Super. 179 (Law Div. 1989); National Ass'n of Homebuilders v. State, Dept. of Envt'l Protect., 64 F.Supp.2d 354 (D.N.J. 1999); Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40 (2005); Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988); Karam v. NJDEP, 308 N.J. Super. 225, 240 (App. Div. 1998), aff'd, 157 N.J. 187 (1999), cert. denied, 528 U.S. 814 (1999).

"Pumpout facility" means a facility intended to receive the discharge of wastewater from a marine sanitation device. Pumpout facilities include, but are not limited to, fixed pumpout stations, dockside pumpouts, portable pumpouts, pumpout boats, and dump stations.

"Qualifying municipality" means a municipality that qualifies under N.J.S.A. 52:27D-178 et seq. to receive State aid for the purpose of enabling such municipalities to maintain and upgrade municipal services and offset local property taxes. Under N.J.S.A. 52:27D-178 et seq., the Department of Community Affairs (DCA) establishes a list of qualifying municipalities for each State fiscal year. DCA's list of qualifying municipalities may be obtained on request from the Department at the address set forth at N.J.A.C. 7:7-1.6.

"Reconstruction" means the repair or replacement of a building, structure, or other parts of a development, provided that such repair or replacement does not increase or change the location of the footprint of the preexisting development, does not increase the area covered by buildings and/or asphalt or concrete pavement, and does not result in a change in the use of the development. Reconstruction of docks and piers means repair or replacement in the same location and size of the preexisting structure. Reconstruction does not include repairs or maintenance, such as replacing siding, windows, or roofs, unless such repairs or maintenance are associated with enlargements which are not exempt pursuant to N.J.A.C. 7:7-2.2(c)4.

"Redevelopment" means the development of a previously developed site that has been inactive, underutilized, or abandoned for five years or less.

"Regulated activity" or "activity" means any activity for which a permit is required under CAFRA, the Wetlands Act of 1970, or the Waterfront Development Law, and shall also include the terms "project" and "development."

"Regulated wetland" means any wetland which has been mapped and the map promulgated pursuant to the Wetlands Act of 1970.

"Residential development" means a development that provides one or more dwelling units.

"Revetment" means a sloped shore protection structure consisting of a facing made of stone, placed on a bank, bluff, or shoreline to withstand the forces of waves and currents. A revetment is not a "gabion" or "bulkhead" as defined elsewhere in this section.

"Rotor swept area" means the area of the circle delineated by the tips of the blades of the wind turbine for a horizontal axis wind turbine, and the area determined by multiplying the rotor radius times the rotor height times 3.14 for a vertical axis wind turbine.

"Seasonal or temporary structures related to the tourism industry" means lifeguard stands and associated temporary equipment storage containers, picnic tables, benches and canopies, beach badge sheds, wooden walkways, stage platforms, and portable restrooms, which remain in place only during the period from May 1 through October 31, and provided that the placement of such structures does not involve the excavation, grading or filling of a beach or dune.

"Sewer service area" means the land area identified in an areawide Water Quality Management plan from which wastewater generated is designated to flow to a domestic treatment works or industrial treatment works. A distinct sewer service area is established for each domestic treatment works and industrial treatment works. Adopted updates to sewer service area maps and proposed changes to sewer service areas can be viewed at http://www.nj.gov/dep/wrm.

"Site" means the lot or lots upon which a proposed development is to be constructed.

"Site plan" or "plan" means, for the purposes of this chapter, a graphic depiction of land, vegetation, water, structures, and other physical features on paper, such as a blueprint, construction plan, cross-section, topographic map, architectural rendering, or other similar illustration, which is submitted to the Department to describe an existing or proposed activity or condition.

"Site preparation" means physical activity which is an integral part of a continuous process of land development or redevelopment for a particular development which must occur before actual construction of that development may commence. It does not include the taking of soil borings, performing percolation tests, or driving of less than three test pilings.

"Solar panel" means an elevated panel or plate, or a canopy or array thereof, that captures and converts solar radiation to produce power, and includes flat plate, focusing solar collectors, or photovoltaic solar cells and excludes the base or foundation of the panel, plate, canopy, or array.

"Spring high water line" means the intersection of the land with the water surface at the elevation of spring high tide.

"Spring tide" means a tide that occurs at or near the time of new and full moon and which rises highest (spring high tide) and falls lowest (spring low tide) from the mean level.

"State Aid Agreement" means a binding agreement between the Department and a municipality or county for the construction of a shore protection project funded through the State Shore Protection Fund. The State Aid Agreement for Federally-funded projects contains the project agreement between the Department and the USACE which defines the project design template.

"Stormwater management facility" means a facility which receives, stores, conveys, or discharges stormwater runoff and is designed in accordance with all applicable local, county, and State regulations. A stormwater management facility may be a retention or detention basin; infiltration structure; grassed swale; filter fabric; rip-rap channel; and/or stormwater outfall.

"Structure" means any assembly of materials above, on, or below the surface of the land or water, including, but not limited to, buildings, fences, dams, pilings, footings, breakwaters, culverts, pipes, pipelines, piers, roads, railroads, and bridges, and includes floating structures.

"Technically complete" means that each item included in an application for a coastal permit other than a CAFRA individual permit provides sufficient information for the Department to declare the application complete for review. For an application for a CAFRA individual permit, technically complete means that each item included in the application provides sufficient information for the Department to determine the application is complete for public comment or complete for public hearing.

"Tidelands instrument" means a written document conveying, leasing or licensing lands owned or claimed to be owned as present or formerly flowed tidelands by the State of New Jersey to public entities or private interests pursuant to N.J.S.A. 12:3-1 et seq. and N.J.S.A. 13:1B-13 et seq. Tidelands instruments include licenses, long-term leases, conveyances (often called grants), and management agreements. These documents are recorded in the office of the clerk of the county or registrar of deeds and mortgages of the county in which the property is located.

"Tidelands Map" means the Tidelands Base Photo Map, adopted by the Department's Tidelands Resource Council under N.J.S.A. 13:1B-13.1 et seq., and which is dated 1977/1978.

"UCC" means the Uniform Construction Code, N.J.A.C. 5:23.

"Upland waterfront development area" means the area described at N.J.A.C. 7:7-2.4(a)3 ii.

"USACE" means the United States Army Corps of Engineers.

"USEPA" means the United States Environmental Protection Agency.

"USFWS" means the United State Fish and Wildlife Service.

"USGS quad map" means a topographic quadrangle map issued by the United States Geological Survey (USGS), 7.5 minute series, drawn at a scale of 1:24,000.

"Water dependent" means development that cannot physically function without direct access to the body of water along which it is proposed. Uses, or portions of uses, that can function on sites not adjacent to the water are not considered water dependent regardless of the economic advantages that may be gained from a waterfront location. Maritime activity, commercial fishing, public waterfront recreation, and marinas are examples of water dependent uses, but only the portion of the development requiring direct access to the water is water dependent. The test for water dependency shall assess both the need of the proposed use for access to the water and the capacity of the proposed water body to satisfy the requirements and absorb the impacts of the proposed use. A proposed use will not be considered water dependent if either the use can function away from the water or if the water body proposed is unsuitable for the use. For example, in a maritime operation, a dock or quay and associated unloading area would be water dependent, but an associated warehouse would not be water dependent.

1. Examples of water dependent uses include: docks, piers, marina activities requiring access to the water, such as commissioning and decommissioning new and used boats, boat repairs and short term parking for boaters, storage for boats which are too large to be feasibly transported by car trailer (generally greater than 24 feet), rack systems for boat storage, industries such as fish processing plants and other commercial fishing operations, port activities requiring the loading and unloading of vessels, and water-oriented recreation.

2. Water dependent uses exclude, for example: housing, hotels, motels, restaurants, warehouses, manufacturing facilities (except for those which receive and quickly process raw materials by ship), dry boat storage for boats that can be transported by car trailer, long-term parking, parking for persons not participating in a water-dependent activity, boat sales, automobile junk yards, and non-water oriented recreation such as roller rinks and racquetball courts.

"Water oriented" means development that serves the general public and derives economic benefit from direct access to the water body along which it is proposed. (Industrial uses need not serve the general public.) A hotel or restaurant, since it serves the public, could be water-oriented if it takes full advantage of a waterfront location. An assembly plant could be water oriented if overland transportation is possible but water-borne receipt of raw materials and shipment of finished products is economically advantageous. Housing is not water-oriented despite the economic premium placed on waterfront housing, because it only benefits those who can afford to buy or rent the housing units.

"Water quality certificate" means a determination by the Department of the consistency with this chapter of an activity that proposes a discharge to waters of the United States that requires a Federal license or permit pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. § 1341. Federal licenses and permits for which water quality certificates are issued include, but are not limited to:

1. NPDES permits by USEPA under Section 402 of the Federal Clean Water Act, 33 U.S.C. § 1342;

2. Permits for the discharge of dredged or fill material issued by the USACE under Section 404 of the Federal Clean Water Act, 33 U.S.C. § 1344;

3. Permits for activities that have a potential to discharge in navigable waters issued by the USACE under Sections 9 and 10 of the Rivers and Harbors Act, 33 U.S.C. §§ 403 and 404; and

4. Hydropower licenses issued by the Federal Energy Regulatory Commission under Sections 3(11), 4 (e) and 15 of the Federal Power Act, 16 U.S.C. §§ 796(11), 797(e), and 808.

"Waters of the State" means the ocean and its estuaries, all springs, streams, wetlands, and bodies of surface or groundwater, whether natural or artificial, within the boundaries of the State of New Jersey or subject to its jurisdiction.

"Waters of the United States" means:

1. All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), wetlands, mudflats, sand flats, sloughs, wet meadows, or natural ponds, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

i. Which are or could be used by interstate or foreign travelers for recreational or other purposes;

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;

iii. Which are used or could be used for industrial purposes by industries in interstate commerce;

iv. Which are or would be used as habitat by birds protected by Migratory Bird Treaties;

v. Which are or would be used as habitat by other migratory birds which cross state lines;

vi. Which are or would be used as habitat for endangered and threatened species; or

vii. Which are used to irrigate crops sold in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this definition;

5. Tributaries of waters identified in paragraphs 1 through 4 of this definition;

6. The territorial seas; and

7. Wetlands adjacent to waters identified in paragraphs 1 through 6 of this definition, other than those that are themselves wetlands.

"Waterward side of development" means the area of the site located between a tidal water body and a line (s) drawn through point(s) of the footprint of the building closest to the water, and parallel to the water body, which line extends to the property boundaries (see Appendix A, herein incorporated by reference).

"Working day" means a day on which the offices of the Department are open for business.

History

• Renumbered from N.J.A.C. 7:7-1.3 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.6 Forms, checklists, information; Department address and website

(a) Forms, checklists, and other information related to this chapter can be obtained from the Division of Land Use Regulation at the address in (b) below, by telephone at (609) 984-0162, or through the Division's website at https://www.nj.gov/dep/landuse. Further information about the Department can be accessed at https://www.nj.gov/dep.

(b) Applications and other correspondence shall be submitted to the following addresses:

1. For submittal of an application for authorization under a general permit or general permit-by-certification, for an individual permit, or a water quality certificate, the Department's website at http://www.nj.gov/dep/online; and

2. For correspondence or the submittal of an application for an exemption, applicability determination, request for the reconsideration of the application of a rule(s) in this chapter, or an extension, transfer, or modification of a permit:

i. For regular mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

Mail code 501-02A, P.O. Box 420

Trenton, NJ 08625; and

ii. For hand delivery, courier service, and overnight mail:

New Jersey Department of Environmental Protection

Division of Land Use Regulation

501 East State Street

5 Station Plaza, Second Floor

Trenton, NJ 08609.

(c) Questions regarding the requirements of this chapter or about the status of a particular application can be directed to the Division of Land Use Regulation Technical Support Center at (609) 777-0454, via email at LURTechSupport@dep.nj.gov or by using an online contact form at https://www.nj.gov/dep/landuse/contact.html.

(d) Applications for authorization under a general permit-by-certification, general permit, an individual permit, or a water quality certificate sent or delivered to the Department by mail, hand delivery, or courier service shall not be deemed to have been received for the purposes of calculating application review deadlines or other time periods under this chapter.

(e) Applications identified at (b)2 above sent or delivered to the Department at an address other than those listed at (b)2i and ii above shall not be deemed to have been received for the purposes of calculating application review deadlines or other time periods under this chapter.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.7 Liberal construction

This chapter shall be liberally construed to effectuate the purpose of the Acts under which it was adopted.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.8 Severability

If any subchapter, section, subsection, provision, clause, or portion of this chapter, or the application thereof to any person, is adjudged unconstitutional or invalid by a court of competent jurisdiction, such judgment shall be confined in its operation to the subchapter, section, subsection, provision, clause, portion, or application directly involved in the controversy in which the judgment was rendered and it shall not affect or impair the remainder of this chapter or the application thereof to other persons.

History

• Amended by 47 N.J.R. 422(a), effective 2/2/2015

N.J. Admin. Code § 7:7-1.9 Repealed

History

• Repealed by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.10 Repealed

History

• Repealed by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-1.11 Repealed

History

• Repealed by 47 N.J.R. 1392(a), effective 7/6/2015

Subchapter 2 APPLICABILITY AND ACTIVITIES FOR WHICH A PERMIT IS REQUIRED

N.J. Admin. Code § 7:7-2.1 When a permit is required

(a) No person shall engage in a regulated activity subject to this chapter without a coastal permit. Initiation of a regulated activity without a coastal permit is considered a violation of this chapter and shall subject the person or persons responsible for the regulated activity to enforcement action in accordance with N.J.A.C. 7:7-29.

(b) A person undertaking any regulated activity under this chapter shall do so only in accordance with:

1. A permit-by-rule, pursuant to N.J.A.C. 7:7-3 and 4;

2. An authorization under a general permit-by-certification, pursuant to N.J.A.C. 7:7-3 and 5;

3. An authorization under a general permit, pursuant to N.J.A.C. 7:7-3 and 6;

4. An individual permit, pursuant to N.J.A.C. 7:7-8; or

5. An emergency authorization, pursuant to N.J.A.C. 7:7-21.

(c) Certain activities under CAFRA and the Waterfront Development Law are exempt from the requirement to obtain a coastal permit under this chapter. The exemptions and process for obtaining an exemption under CAFRA are set forth at N.J.A.C. 7:7-2.2(c) through (f) and under the Waterfront Development Law at N.J.A.C. 7:7-2.4(d), (f), and (h).

History

• Amended by 47 N.J.R. 422(a), effective 2/2/2015

N.J. Admin. Code § 7:7-2.2 CAFRA

(a) Subject to the interpretation and definition of certain statutory terms as provided at (b) below and subject to the exemptions identified at (c) below, a CAFRA permit shall be required for:

1. Any development located on a beach or dune;

2. A development located in the CAFRA area between the mean high water line of any tidal waters, or the landward limit of a beach or dune, whichever is most landward, and a point 150 feet landward of the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward, that would result either solely or in conjunction with a previous development, in:

i. A development if there is no intervening development that is either completed or under active construction as of July 19, 1994 between the proposed site of the development and the mean high water line of any tidal waters;

ii. A residential development having three or more dwelling units if there is an intervening development that is either completed or under active construction as of July 19, 1994 between the proposed site of the development and the mean high water line of any tidal waters;

iii. A commercial development having five or more parking spaces or equivalent parking area if there is an intervening development that is either completed or under active construction as of July 19, 1994 between the proposed site of the development and the mean high water line of any tidal waters; or

iv. A public development or industrial development;

3. A development located in the CAFRA area between a point greater than 150 feet landward of the mean high water line or any tidal waters or the landward limit of a beach or dune, whichever is most landward, and a point 500 feet landward of the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward, which is located within the boundaries of a qualifying municipality or which is located within the boundaries of a city of the fourth class with a population of over 30,000 persons according to the latest decennial census, that would result, either solely or in conjunction with a previous development, in:

i. A residential development having 25 or more dwelling units;

ii. A commercial development having 50 or more parking spaces or equivalent parking area; or

iii. A public development or industrial development;

4. A development located in the CAFRA area beyond 500 feet landward of the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward, and which is located within the boundaries of a qualifying municipality or which is located within the boundaries of a city of the fourth class with a population of over 30,000 persons according to the latest decennial census, that would result, either solely or in conjunction with a previous development, in:

i. A residential development having 75 or more dwelling units;

ii. A commercial development having 150 or more parking spaces or equivalent parking area; or

iii. A public development or industrial development; and

5. Except as otherwise provided at (a)1, 2, 3, or 4 above, a development in the CAFRA area at a point beyond 150 feet landward of the mean high water line of any tidal waters or the landward limit of a beach or dune, whichever is most landward, that would result, either solely or in conjunction with a previous development in:

i. A residential development having 25 or more dwelling units;

ii. A commercial development having 50 or more parking spaces or equivalent parking area; or

iii. A public development or industrial development.

(b) The Department interprets its obligation and responsibility to regulate development as defined by CAFRA to include review of the potential impacts of any development, if at least part of that development is located within the area in which a CAFRA permit is required. Therefore, if any development requires a CAFRA permit, the Department will review all of the components of the development, not just those that triggered the regulatory thresholds of CAFRA. In addition, the Department will review all the components of a development that spans the zones in (a) above if the total development exceeds a regulatory threshold. The Department interprets the statutory intent as excluding developments with relatively minor impacts. In addition, the repair and maintenance of utilities within rights-of-way on beaches and dunes are not development, provided that all disturbed areas are restored to their pre-disturbance condition. To that end, the following statutory terms are interpreted to mean the following, for the purposes of this section.

1. The method for determining whether an existing development is an intervening development is as follows:

i. For proposed developments other than single family home or duplex and/or accessory development as described in (b)1ii below, extend a line landward and perpendicular to the mean high water line from each of the widest shore-parallel points of the footprint of the existing development (see Appendix B, incorporated herein by reference). If the proposed development does not fall entirely within these lines, then the existing development is not considered intervening development.

ii. For a proposed single family home or duplex and/or accessory development (such as garages, sheds, pools, driveways, excluding shore protection structures) that is not part of a larger development, extend a line landward and perpendicular to the mean high water line from each of the widest shore-parallel points of the footprint of the existing development (see Appendix C, incorporated herein by reference). If the proposed single family home or duplex and/or accessory development extends beyond these lines more than 15 feet on either side or a cumulative total of 20 feet, then the existing development is not considered intervening development.

iii. Existing developments that may be considered intervening development include above-ground structures such as houses, garages, cabanas or bath houses which are fully enclosed and serviced by a municipal sewer system, and commercial, industrial or public buildings provided the above-ground structure received all necessary Federal, State and local approvals and was:

(1) Completed or under active construction as of July 19, 1994;

(2) Exempt from CAFRA; or

(3) Constructed under a CAFRA permit.

iv. Existing developments that are not considered intervening development include shore protection structures, seawalls, bulkheads, retaining walls, gabions, revetments, fences, boardwalks, promenades, patios, decks, carports, prefabricated sheds without foundations, docks, piers, lifeguard stands, gazebos, swimming pools, utility lines, culverts, railroads, roadways, sewage pump stations, or seasonal or temporary structures associated with the tourism industry or constructed under the general permit for the construction of certain types of temporary and seasonal developments at hotels and motels, commercial developments, and multi-family residential developments of 75 units, N.J.A.C. 7:7-6.22.

2. If located in an area other than a beach or a dune, public development is not the following:

i. The maintenance, repair or replacement (including upgrade) of existing petroleum, sewage or natural gas pipelines, and associated pump stations and connection junctions, and electrical substations, located completely within paved roadways or paved, gravel, or cleared and maintained rights-of-way, provided that the replacement of sewage pipelines and associated pump stations does not result in an increase in the associated sewer service area;

ii. The maintenance, repair, modification, or replacement of sanitary system components other than pipelines and associated pump stations, including upgrading of systems from primary to secondary treatment, provided that an increase in capacity will not result;

iii. The construction, maintenance, repair or replacement (including upgrade) of water lines, telecommunication and cable television lines, including fiber optic cables, poles and transfer and/or switching stations associated with telecommunication lines, provided the transfer and/or switching station is located completely within paved roadways or paved, gravel, or cleared and maintained rights-of-way. This does not include the construction of telecommunication towers such as cellular telephone towers;

iv. The maintenance, repair or replacement of existing and functional railroads and related structures located completely within cleared and maintained rights-of-way;

v. The maintenance and repair of existing stormwater management facilities which receive, store, convey or discharge stormwater runoff;

vi. The construction of less than 1,200 linear feet of new stormwater pipes;

vii. The construction or expansion of educational facilities;

viii. The construction of seasonal or temporary structures related to the tourism industry; or

ix. The construction, maintenance, repair or replacement of power lines.

3. In addition to the activities identified at (b)2 above, if located more than 150 feet from the mean high water line of any tidal waters, or the landward limit of a beach or a dune, whichever is most landward, public development is not the following:

i. The construction of a new road, sanitary sewer pipeline, petroleum pipeline or natural gas pipeline of less than 1,200 feet in length or the extension of a road, sanitary sewer pipeline, stormwater management facility, petroleum pipeline or natural gas pipeline of less than 1,200 feet in length, not to exceed a cumulative total of 1,200 feet in any one municipality at any one site, unless the construction is located within a development requiring a CAFRA permit in which case it shall be considered part of the development for which a permit is required; or

ii. The construction of telecommunication towers such as cellular telephone towers.

4. Equivalent parking areas will be calculated at 270 square feet per parking space, including one half of the associated aisle area, excluding access drives. This calculation shall apply to both paved and unpaved parking areas.

5. A development that is used solely for the storage of food or other merchandise, excluding storage of agri-chemical and petroleum products, and that is not associated with any on-site manufacturing or industrial process and is not specifically included in the definition of industrial development at N.J.A.C. 7:7-1.5 is considered a "commercial development."

6. Municipal or other government administrative, public works, or emergency services buildings that are not specifically included in the definition of public development at N.J.A.C. 7:7-1.5 or parks which are publicly owned or controlled are considered commercial developments.

7. Churches, synagogues or other houses of worship are considered commercial developments.

8. Development or expansion of existing developments "either solely or in conjunction with a previous development" is described at (b)8i through iv below. "Previous development" includes developments that either were previously constructed after September 19, 1973 or developments that previously received a CAFRA permit which remains valid but the approved development has not yet been built. For the purposes of (b)8i, ii and iii below, contiguous parcels shall include, but not be limited to, those land areas which directly abut or are separated by a general access roadway or other right-of-way, including waterways, or those land areas which are part of a subdivision existing and under common ownership on or after September 19, 1973.

i. The construction of any residential or commercial development on contiguous parcels of property, regardless of present ownership, where there is a proposed sharing of infrastructure constructed to serve those parcels including, but not limited to, roads, utility lines, drainage systems, open spaces or septic drain fields;

ii. The construction of any residential or commercial development on contiguous parcels of property which were under common ownership on or after September 19, 1973, regardless of present ownership, or any subdivision or re-subdivision of a parcel of land which occurred after September 19, 1973;

iii. The construction of any residential or commercial development on contiguous parcels of property, where there is some shared pecuniary, possessory, or other substantial common interest by one or more individuals in the units;

iv. The addition of one or more parking spaces or dwelling units or equivalent to any existing dwelling units or parking spaces or equivalent parking area for which construction had commenced subsequent to September 19, 1973 where such addition, when combined with the existing dwelling units or parking area, results in a total exceeding the regulatory threshold. Any dwelling units or parking areas in existence on or before September 19, 1973 which have been determined by the Department to be exempt from the requirements of this subchapter due to on-site construction on or before September 19, 1973 will not be counted when determining if a new or expanded development exceeds the regulatory threshold.

(1) The addition of parking spaces by restriping is not regulated.

v. The total number of dwelling units or parking spaces in a new or expanded development need not be restricted to any single municipal tax block nor to any one period in time in order to require a permit;

vi. The construction of a development below the regulatory threshold as defined in this section, where such construction is part of a larger planned development in which the total development will exceed the regulatory threshold.

9. Commercial development not located on a beach or a dune and not located within 150 feet of the beach, dune or mean high water line unless there is an intervening development as described at (b)1 above, excludes development which:

i. Does not cause the number of parking spaces (either solely or in conjunction with the existing development) to exceed the regulatory threshold of the appropriate zone; or

ii. Does not propose development of any new parking spaces, regardless of whether the total number of existing parking spaces exceeds the regulatory threshold of the appropriate zone.

10. The elevating of an existing residential, commercial, industrial, or public building on pilings does not require a CAFRA permit, unless the elevating of the existing building is associated with an enlargement and such enlargement is not exempt under CAFRA pursuant to (c)4 below or unless the elevating of the existing building involves excavation, filling, or grading on a beach or a dune. Additional parking spaces located under a building elevated in accordance with this paragraph are not counted toward the parking space or equivalent parking area limits at (a) above.

11. Residential developments which include the offsite construction of more than 1,200 linear feet of new sewer pipelines or roads require a CAFRA permit regardless of the number of dwelling units. For all other residential developments which are not located on a beach or dune, whether a CAFRA permit is required is based on the number of dwelling units proposed only and not the length of roadways or sewer pipelines on-site.

12. The classification or removal from classification of the municipality in which a development is located as a "qualifying municipality" affects the requirement for a CAFRA permit for such development as follows:

i. If construction of the development under a valid CAFRA permit has been started and the municipality in which the development is located either becomes classified or is removed from classification as a "qualifying municipality," the permittee is obligated to comply with all conditions of the permit;

ii. If construction of the development under a valid CAFRA permit has not been started at a time when the municipality in which the development is located is classified as a "qualifying municipality" such that the development does not require a CAFRA permit under (a)3 or 4 above, the permittee need not comply with the conditions of the issued permit;

iii. If construction of the development is started in accordance with all necessary approvals at a time when the municipality in which the development is located is classified as a "qualifying municipality" such that the development does not require a CAFRA permit under (a)3 or 4 above, and if subsequently the municipality is removed from classification as a "qualifying municipality," the Department shall not require a CAFRA permit for the development provided construction continues to completion with no lapses in construction that cumulatively total one year or more;

iv. If site plan approval is obtained for the development pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) at a time when the municipality in which the development is located is classified as a "qualifying municipality" such that the development does not require a CAFRA permit under (a)3 or 4 above, and if subsequently the municipality is removed from classification as a "qualifying municipality," the Department shall not, for a period of one year from the date that the municipality is removed from classification as a "qualifying municipality," require a CAFRA permit for the development, provided construction is started within this one-year period and continues through completion with no lapses in construction that cumulatively total one year or more;

v. If preliminary subdivision approval is obtained for a residential development pursuant to the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), and no subsequent site plan approval is required, at a time when the municipality in which the development is located is classified as a "qualifying municipality" such that the development does not require a CAFRA permit under (a)3 or 4 above, and if subsequently the municipality is removed from classification as a "qualifying municipality," the Department shall not, for a period of one year from the date that the municipality is removed from classification as a "qualifying municipality," require a CAFRA permit for the development, provided construction is started within this one-year period and continues through completion with no lapses in construction that cumulatively total one year or more;

vi. For the purposes of (b)12iii through v above, construction means having completed one of the following, as approved as part of the municipal site plan or subdivision approval:

(1) The foundation for one of the buildings or structures;

(2) The subsurface improvements for the roadways; or

(3) The bedding for utilities.

vii. Development under (b)12iii through v above is limited to the specific project depicted on the approved site plan or for residential developments only, the specific project that was the subject of the subdivision approval, namely development of the subdivision which is consistent with the lot coverage, use and density restrictions of the zoning ordinances that were in effect at the time of the subdivision approval or that were authorized by the subdivision approval.

13. Development is not the following:

i. The installation of a wind turbine(s) provided the wind turbine(s) is:

(1) On or structurally attached to a legally existing building;

(2) Less than 200 feet in height, measured from the ground surface to the tip of the blade at its highest position;

(3) No greater than 2,000 square feet in cumulative rotor swept area; and

(4) Any portion of the tower of the wind turbine more than 100 feet above the ground surface is a freestanding monopole;

ii. The installation of a solar panel(s) provided the solar panel(s) is:

(1) On or structurally attached to a legally existing building;

(2) On or structurally attached to a utility pole (electric, telephone, cable and lighting) within a maintained utility right-of-way or on or structurally attached to a parking lot light pole;

(3) On legally existing impervious cover unless the solar panel would be located in a floodway; or

(4) On a sanitary landfill provided the solar panel is authorized under a solid waste landfill closure and post-closure plan or disruption approval issued by the Department pursuant to N.J.A.C. 7:26-2A.8 or 2A.9 ; or

iii. The rehabilitation and use of an existing dredged material management area within the same footprint.

(c) A CAFRA permit shall not be required for:

1. A development which received preliminary site plan approval pursuant to the Municipal Land Use Law, N.J.S.A. 40:55-1 et seq., or a final municipal building or construction permit on or before July 19, 1994, provided that construction began by July 19, 1997, and continues to completion with no lapses in construction activity of more than one year;

i. An exemption under this section is granted only for the specific project depicted on the approved site plan or described in the building or construction permit.

ii. Any development that required a permit pursuant to CAFRA prior to July 19, 1994, shall continue to require a CAFRA permit and shall not be exempted under this section.

iii. For purposes of this paragraph, "construction" means having completed one of the following as approved as part of the site plan:

(1) The foundation for one of the buildings or structures;

(2) All of the subsurface improvements for roadways;

(3) The installation of all of the bedding materials for utility lines; or

(4) The installation of a well or septic system, for projects which are exempt based on receipt of a final municipal building or construction permit.

iv. To determine if construction of a development or part of a development began by July 19, 1997, the Department shall evaluate such proofs as may be provided by the applicant, including, but not limited to, the following: documentation that the local construction official has completed the inspection at N.J.A.C. 5:23-2.18(b)1 i(2) or 2.18(b)1i(3) for foundations of buildings or structures; reports from the municipal engineer documenting inspections of road bed construction; or billing receipts documenting the completion of the above construction activities.

v. In the event the final municipal building or construction permit expired and the permit was renewed or a new permit was obtained for the same project, the development will remain exempt provided construction began by July 19, 1997. In cases where the municipal approval expired and was renewed or that a new permit was issued, the Department will require documentation that the new or renewed permit authorized the same construction as the original permit, and that the currently authorized construction would not result in additional adverse impacts to any special areas as defined at N.J.A.C. 7:7-9 that are greater than any adverse impacts associated with the development authorized before July 19, 1994, and the proposed construction is either 15 feet inshore of a bulkhead or no closer to the water than the original approval.

2. A residential development which received preliminary subdivision approval or minor subdivision approval pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1et seq., on or before July 19, 1994, where no subsequent site plan approval is required, provided that construction began by July 19, 1997, and continues to completion with no lapses in construction activity of more than one year;

i. An exemption under this section is granted only for the specific project that was the subject of the subdivision approval, namely development of the subdivision which is consistent with the lot coverage, use and density restrictions of the zoning ordinances that were in effect at the time of the subdivision approval or that were authorized by the subdivision approval.

ii. Any development that required a permit pursuant to CAFRA prior to July 19, 1994, shall continue to require a CAFRA permit and shall not be exempted under this section.

iii. For purposes of this paragraph, "construction" means having completed one of the following as approved as part of the subdivision approval:

(1) The foundation for one of the buildings or structures;

(2) All of the subsurface improvements for roadways; or

(3) The installation of all of the bedding materials for utility lines.

iv. To determine if construction of a development or part of a development began by July 19, 1997, the Department shall evaluate such proofs as may be provided by the applicant, including, but not limited to, the following: documentation that the local construction official completed the inspection at N.J.A.C. 5:23-2.18(b)1 i(2) or 2.18(b)1i(3) for foundations of buildings or structures; reports from the municipal engineer documenting inspections of road bed construction; or billing receipts documenting the completion of the above construction activities.

3. The reconstruction of any development which was legally existing on and damaged subsequent to July 19, 1994 that is damaged or destroyed, in whole or in part, by fire, storm, natural hazard or act of God, provided that such reconstruction is in compliance with existing requirements or codes of municipal, State and Federal law; and further provided that such reconstruction does not result in:

i. The enlargement or relocation of the footprint of the development; or

ii. An increase in the number of dwelling units or parking spaces within the development.

iii. A relocation landward or laterally may qualify for the exemption at (c)3 above if the Department determines, in writing, that such a relocation would result in less environmental impact than the in place reconstruction of damaged or destroyed development.

iv. Any person requesting a determination concerning relocation landward shall follow the procedures for an exemption determination at (f)2 below.

v. An increase in the area covered by buildings and/or asphalt or concrete pavement.

4. The enlargement of any building provided that such enlargement does not result in:

i. The enlargement of the footprint of the development; or

ii. An increase in the number of dwelling units or parking spaces associated with the building;

5. The construction of a patio, deck, or similar structure at a residential development, provided such construction does not result in the grading, excavation, or filling of a beach or dune.

i. For the purposes of this paragraph, "similar structure" includes porches, balconies and verandahs. The exemption for the construction of a patio, deck, porch, balcony or veranda only remains in effect as long as the patio, deck, porch, balcony or veranda remains used for the purpose that it was originally constructed. Further, the exemption shall not include the placement of any structure such as a pool, roof or enclosure with walls or windows on a patio, deck, porch, balcony or veranda. Such activities will require a CAFRA permit.

ii. For the purposes of this paragraph, the following shall be considered "similar structures" at a residential development, provided that their construction does not include the placement of pilings or placement of a structure on a beach, dune, or wetland: fences, flower boxes, gardens, a landscape wall (for example, railroad ties) no more than one foot in height (or a series of walls not to exceed a cumulative total of one foot in height), satellite dishes and antennas, and wooden boardwalks and gravel or brick/paver block walkways.

iii. For the purposes of this paragraph, the following shall also be considered "similar structures" at a residential development, provided that their construction does not include the placement of pilings or placement of a structure on a beach, dune, wetland or coastal bluff: sheds (with a footprint of 120 square feet or less), open carports, gazebos, propane tanks properly anchored, and showers, spas, hot tubs and above ground swimming pools (not exceeding 500 square feet of surface area) which do not discharge to surface waters or wetlands.

iv. For the purposes of this paragraph, the construction of elevated timber or at-grade dune walkover structures constructed in accordance with Department specifications found at N.J.A.C. 7:7-10.4(d) and (e)1, 2, and 3, respectively, shall be considered a "similar structure" at a residential development.

v. For the purposes of this paragraph, the following shall not be considered "similar structures" at a residential development: swimming pools, garages, retaining walls, bulkheads, revetments, driveways and associated parking areas, paved yard areas, or outbuildings, except as provided at (c)5iii above.

6. Services provided, within the existing public right-of-way, by any government entity which involve:

i. The routine reconstruction, substantially similar functional replacement, or maintenance or repair of public highways. The paving of an existing unpaved roadway is not considered to be a substantially similar functional replacement;

ii. Public highway lane widening, intersection and shoulder improvement projects (including new paving or repaving) which do not increase the number of travel lanes;

iii. Public highway signing, lighting, guide rail and other nonintrusive safety projects, including traffic control devices; or

iv. Re-striping of public highways and the addition of toll booths provided that these activities do not result in any increase in asphalt or concrete pavement.

7. Any development that has an existing, valid CAFRA permit dated prior to July 19, 1994, provided that construction, as defined at N.J.A.C. 7:7-2.2(c)1 iii, begins prior to the expiration date of the permit and continues with no cumulative lapses in construction activity of more than one year.

8. The expansion of an existing, functional amusement pier, provided such expansion does not exceed the footprint of the existing, functional amusement pier by more than 25 percent, and provided such expansion is located in the area beyond 150 feet landward of the mean high water line, beach or dune, whichever is most landward.

(d) Any exemption based upon on-site construction, as defined at N.J.A.C. 7:7-2.2(c)1 iii on or before September 19, 1973, expired on July 19, 1997.

(e) A development shall no longer be exempt from the requirement of obtaining a CAFRA permit if significant changes are made to the development which would void the approvals listed at (c)1 and 2 above, or which would result in additional impacts to special areas, as defined at N.J.A.C. 7:7-9, which additional impacts are greater than the impacts associated with the originally exempt development.

(f)Development that is exempt from CAFRA requires no certification or approval from the Department, except as may be required by other programs administered by the Department. Any person who wishes may request from the Department a written determination of a development's exemption from the requirements of this chapter.

1. For an exemption pursuant to (c)1 and 2 above, the following shall be submitted:

i. A folded copy of the approved site plan or subdivision plan, a copy of the resolution approving the site plan or subdivision, or a copy of the building permit and approved plan and soil conservation district approval where required;

ii. In the event that the final municipal building or construction permit expired and the permit was renewed or a new permit was obtained for the same project, the development will remain exempt provided construction began by July 18, 1997. To make such a determination, the Department will require documentation that the new permit authorized exactly the same construction as the original permit, such as a copy of the original building permit with approved plan and soil conservation district approval where required and a copy of the new building permit with approved plan depicting the exact development as the original;

iii. The fee specified at N.J.A.C. 7:7-25.1; and

iv. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6.

2. For an exemption pursuant to (c)3, 4, and 5 above, the following shall be submitted:

i. Plans showing the existing structures and site conditions with locations and dimensions, and all proposed structures, filling, grading, excavation and clearing;

(1) For exemptions based on fire, storm, natural hazard or Act of God, the site plans submitted shall also indicate all preexisting structures to be rebuilt.

ii. Photographs of the site;

iii. The fee specified at N.J.A.C. 7:7-25.1; and

iv. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6.

3. For an exemption pursuant to (c)8 above, the following shall be submitted:

i. A description of the location of the amusement pier including county, municipality, lot(s) and block(s);

ii. A copy of a site plan showing the location of the existing, functional amusement pier and the proposed location of the expansion;

iii. Documentation concerning the size of the footprint of the existing functional amusement pier and the size of the proposed expansion;

iv. Photographs of the site;

v. The fee specified at N.J.A.C. 7:7-25.1; and

vi. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6.

History

• Renumbered from N.J.A.C. 7:7-2.1 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-2.3 Coastal wetlands

(a) Coastal wetlands permits are required for all activities in coastal wetlands delineated and mapped pursuant to the Wetlands Act of 1970 including, but not limited to:

1. The cultivation and harvesting of naturally occurring agricultural or horticultural products. This provision shall not apply to the continued production of commercial salt hay or other agricultural crops on lands utilized for these purposes on or before April 13, 1972;

2. The excavation of an individual mooring slip;

3. The maintenance or repair of bridges, roads, highways, railroad beds or the facilities of any utility or municipality. This provision shall not apply to emergency repairs necessitated by a natural disaster or a sudden and unexpected mechanical, electrical or structural failure. Written notification of such repairs shall be provided to the Program within seven days after their initiation;

4. The construction of catwalks, piers, docks, landings, footbridges and observation decks;

5. The installation of utilities;

6. Excavation of boat channels and mooring basins;

7. The construction of impoundments;

8. The construction of sea walls;

9. The diversion or appropriative use of water;

10. The use of pesticides, except those applied to the skin or clothing for personal use;

11. Driving or causing to pass over or upon wetlands, any mechanical conveyance which may alter or impair the natural contour of the wetlands or the natural vegetation; and

12. Filling, excavation or the construction of any structure.

(b) The following activities are prohibited on regulated wetlands:

1. Placing, depositing or dumping any solid waste, garbage, refuse, trash, rubbish or debris;

2. Dumping or discharging treated or untreated domestic sewage or industrial wastes, either solid or liquid;

3. Applying any pesticide on areas containing significant stands of high vigor Spartina alterniflora (Saltmarsh cordgrass), Zizania aquatica (Wildrice), Typha sp. (Cattail), and Scirpus americanus (common threesquare) as shown generally on wetlands maps;

4. The storage or disposal of pesticides;

5. The application of persistent pesticides.

(c) These rules shall be applicable only in those areas shown waterward of the upper wetland boundary on the coastal wetlands maps (base map photography dated 1971, 1972) listed in chapter Appendix D and incorporated herein by reference.

History

• Amended by 47 N.J.R. 422(a), effective 2/2/2015

N.J. Admin. Code § 7:7-2.4 Waterfront development

(a) The waterfront area regulated under this chapter varies in width in accordance with the following:

1. Within any part of the Hackensack Meadowlands District delineated at N.J.S.A. 13:17-4, the area regulated by this section shall include any tidal waterway of this State and all lands lying thereunder, up to and including the mean high water line.

2. Within the CAFRA area, the regulated waterfront area shall include any tidal waterway of this State and all lands lying thereunder, up to and including the mean high water line.

3. In those areas of the State outside both the CAFRA area and outside of the Hackensack Meadowlands District, the regulated waterfront area shall include:

i. All tidal waterways and lands lying thereunder, up to and including the mean high water line; and

ii. Adjacent upland areas within 100 feet of the mean high water line. For properties within 100 feet of the mean high water line that extend inland beyond 100 feet from the mean high water line, the regulated waterfront area shall extend inland to the lesser of the following distances:

(1) 500 feet from the mean high water line; or

(2) To the first paved public road, railroad, or surveyable property line that:

(A) Existed on September 26, 1980; and

(B) Generally parallels the waterway.

4. In the 12-mile circle as described at N.J.A.C. 7:7-1.2(c), the regulated waterfront area shall include the area within the circle and extending outshore of the low-water mark of the Delaware River consistent with the decree of the United States Supreme Court in State of New Jersey v. State of Delaware , 552 U.S. 597, 623-24 (2008). The area landward of the boundary of the 12-mile circle is regulated waterfront area as set forth at (a)2 and 3 above.

(b) This chapter shall apply to all man-made waterways and lagoons subject to tidal influence.

(c) The development activities at (c)1 through 4 below will require a permit in that portion of the waterfront area at or waterward of the mean high water line. In accordance with N.J.A.C. 7:7-1.2(c), within the 12-mile circle, these development activities require a permit if the development activity affects New Jersey's riparian rights. Development activities that affect New Jersey's riparian rights include, but are not limited to, the construction, maintenance, and use of wharves and other riparian improvements appurtenant to the eastern shore of the Delaware River that extend outshore of the mean low water line or will help to maintain access from the navigable water to such improvement.

1. The removal or deposition of sub-aqueous materials (for example, dredging or filling).

2. The construction or alteration of a dock (fixed or floating), wharf, pier (including covered or enclosed structures such as gazebos or sheds located on or above the decking of the dock, wharf or pier), bulkhead, breakwater, groin, jetty, seawall, bridge, piling, boat lift, mooring dolphin, pipeline, cable, or other similar structure.

3. The mooring of a floating home for more than 10 consecutive days. Floating homes in use within the waters of this State prior to June 1, 1984, shall not require a permit.

4. The installation of temporary aids to navigation by any person, if they remain in place for more than 10 consecutive days.

(d) A permit shall be required for the construction, reconstruction, alteration, expansion, or enlargement of any structure, or for the excavation or filling of any area, any portion of which is in the waterfront area as defined in (a) above, with the exceptions listed below:

1. In the waterfront area defined in (a)3 above, the construction, alteration, expansion or reconstruction of an individual single family dwelling unit or addition to such unit, if constructed more than 100 feet landward of the mean high water line;

2. In the waterfront area defined in (a)3 above, the reconstruction, conversion, alteration or enlargement of any existing structure located more than 100 feet landward of the mean high water line, provided that no change in land use results, and that enlargements do not exceed 5,000 square feet;

3. In the waterfront area defined in (a)3 above, minor additions to or changes in existing structures or manufacturing operations that do not result in adverse environmental impacts to special areas defined at N.J.A.C. 7:7-9, provided the addition is located in an existing cleared area of the site, and is set back a minimum of 15 feet landward of the mean high water line, where such changes or additions do not result in a change in the present land use of the site;

4. In the waterfront area defined in (a)3 above, the installation of a wind turbine(s) provided the wind turbine(s) is:

i. On or structurally attached to a legally existing building;

ii. Less than 200 feet in height, measured from the ground surface to the tip of the blade at its highest position;

iii. No greater than 2,000 square feet in cumulative rotor swept area; and

iv. Any portion of the tower of the wind turbine more than 100 feet above the ground surface is a freestanding monopole;

5. In the waterfront area defined in (a)3 above, the installation of solar panels provided the solar panels are:

i. On or structurally attached to a legally existing building;

ii. On or structurally attached to a utility pole (electric, telephone, cable and lighting) within a maintained utility right-of-way or on or structurally attached to a parking lot light pole;

iii. On legally existing impervious cover provided the solar panels are not located within a floodway; or

iv. On a sanitary landfill provided the solar panel is authorized under a solid waste landfill closure and post-closure plan or disruption approval issued by the Department pursuant to N.J.A.C. 7:26-2A.8 or 2A.9 ;

6. The repair, replacement, renovation, or reconstruction, in the same location and size, as determined in accordance with (d)6i and ii below of the preexisting structure, of any dock, wharf, pier, bulkhead, or building, legally existing prior to January 1, 1981, that appears on the applicable Tidelands Map or that appears on the applicable coastal wetlands map identified pursuant to N.J.A.C. 7:7-2.3(c) and chapter Appendix D or that received a waterfront development permit subsequent to the date of the Tidelands Map or coastal wetlands map, as applicable, provided that the repair, replacement, renovation, or reconstruction is in the same location as the preexisting structure, and does not increase the size of the structure and the structure is used solely for residential purposes or for the docking of or servicing of pleasure vessels.

i. The size of a dock or pier over wetlands, a low-profile bulkhead where the top of the bulkhead is constructed at an elevation below the spring high water line, or a building over wetlands or water shall be measured in three dimensions, that is, length, width, and height; and

ii. The size of any dock, wharf, pier, or bulkhead, or building not identified at (d)6i above shall be measured in two dimensions, that is, length and width;

7. The repair, replacement, renovation, or reconstruction, in the same location and size, as measured in two dimensions, that is, length and width, of the preexisting structure, of any floating dock, mooring raft, or similar temporary or seasonal improvement or structure, legally existing prior to January 1, 1981, that appears on the applicable Tidelands Map, or that appears on the applicable coastal wetlands map identified pursuant to N.J.A.C. 7:7-2.3(c) and chapter Appendix D, or that received a waterfront development permit subsequent to the date of the Tidelands Map or coastal wetlands map, as applicable, provided that the repair, replacement, renovation, or reconstruction is in the same location and size as the preexisting structure, and does not exceed in length the waterfront frontage of the parcel of real property to which it is attached and is used solely for the docking of servicing of pleasure vessels; and

8. The redecking and replacement of bridge surfaces provided there is no change in width, length or height.

(e) Those portions of a dock or pier proposed to be constructed landward of the mean high water line and in the coastal zone may be subject to the permits-by-rule at N.J.A.C. 7:7-4.4 and 4.5.

(f) Development that is exempt from the Waterfront Development Law requires no certification or approval from the Department, except as may be required by other programs administered by the Department. Any person who wishes may request from the Department a written determination of a development's exemption from the requirements of this chapter.

1. For a written determination of exemption pursuant to (d)1 and 2 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The general site location of the development, which shall be identified on a county or local road map or an insert from a USGS quad map;

iv. The fee specified at N.J.A.C. 7:7-25.1; and

v. A site plan depicting the following:

(1) The location of the proposed construction, reconstruction, alteration, conversion expansion, or enlargement; and

(2) The location of the mean high water line.

2. For a written determination of exemption pursuant to (d)3 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The general site location of the development, which shall be identified on a county or local road map or an insert from a USGS quad map;

iv. The fee specified at N.J.A.C. 7:7-25.1; and

v. A site plan depicting the following:

(1) The location of the proposed construction, reconstruction, alteration, conversion expansion, or enlargement;

(2) The location of the mean high water line; and

(3) The limits of all special areas as defined at N.J.A.C. 7:7-9.

3. For a written determination of exemption pursuant to (d)4 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The fee specified at N.J.A.C. 7:7-25.1;

iv. The total height and rotor swept area of the proposed wind turbine(s); and

v. A site plan depicting the following:

(1) The location of the proposed wind turbine(s);

(2) The height of the wind turbine(s) in relation to the ground surface elevation; and

(3) Details of the wind turbine monopole.

4. For a written determination of exemption pursuant to (d)5 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The fee specified at N.J.A.C. 7:7-25.1;

iv. A site plan depicting the following:

(1) The location of the proposed solar panels; and

(2) The floodway, if appropriate; and

v. If located on a sanitary landfill, a copy of the Closure and Post-Closure Care Plan or modified plan as approved by the Department in accordance with the Solid Waste Management rules at N.J.A.C. 7:26.

5. For a written determination of exemption pursuant to (d)6 and 7 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The fee specified at N.J.A.C. 7:7-25.1;

iv. A copy of the Tidelands instrument (grant, lease or license);

v. If applicable, a copy of any previous waterfront development permit issued for the structures to be replaced, renovated or reconstructed;

vi. A copy of the applicable portion of the Tidelands Map or coastal wetlands map showing the location and dimensions of the structures to be replaced, renovated, or reconstructed;

vii. Photograph(s) of the existing structures labeled as to orientation;

viii. The general site location of the development, which shall be identified on a county or local road map or an insert from a USGS quad map; and

ix. A site plan showing the location and dimensions of the structures to be replaced, renovated, or reconstructed.

6. For a written determination of exemption pursuant to (d)8 above, the following shall be submitted:

i. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

ii. A written description of the proposed development;

iii. The fee specified at N.J.A.C. 7:7-25.1; and

iv. A site plan depicting the location of the existing and proposed bridge surface to be redecked.

(g) A waterfront development permit is required for the filling of any lands formerly flowed by the tide, if any filling took place after 1914 without the issuance of a tidelands instrument by the Department of Environmental Protection and Tidelands Resource Council or their predecessor agencies, even where such lands extend beyond the landward boundary of the upland area defined in (a)3 above, or up to and including the mean high water line in the areas defined in (a)1 and 2 above.

1. A Waterfront Development permit application submitted under this subsection must be submitted in conjunction with an application for a tidelands instrument.

(h) A waterfront development permit shall not be required for any development or activity in the upland area defined in (a)3 above and in manmade waterways and lagoons for which on-site construction, excluding site preparation, was in progress on or prior to September 26, 1980. For the purpose of this section, "construction, excluding site preparation" does not include clearing vegetation, bringing construction materials to the site, site grading or other earth work associated with preparing a site for construction or structures. For the purposes of this section, "construction, excluding site preparation" does encompass improvements which include, but are not limited to, paved roads, curbs, and storm drains.

1. Any person who believes that a proposed development is exempt from the requirements of this subchapter due to on-site construction may request in writing a determination of exemption from the Department in accordance with (g)2 below.

2. Exemptions shall be applied for and considered upon submission of information sufficient for the Department to determine that the physical work specified in (g)1 above necessary to begin the construction of the proposed development, was actually performed prior to September 26, 1980 in the area defined in (a)3 above.

i. Any lapse in construction activity of more than one year may be cause for denial of an exemption request, or where previously exempted, it may be cause for revocation of such exemption, by the Department.

ii. A finding that a proposed development is exempt from the requirements of this subchapter shall apply only to the development as conceived and designed prior to September 26, 1980. Any modification which expands or substantially changes the exempted development shall require a permit.

History

• Renumbered from N.J.A.C. 7:7-2.3 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-2.5 Obtaining an applicability determination

(a) A person may request a written applicability determination from the Department to determine the applicability of CAFRA, the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.), and/or the Waterfront Development Law (N.J.S.A. 12:5-3 et seq.) to a proposed project. An applicability determination is optional, but the Department encourages persons to request one if there is uncertainty about whether a particular activity is regulated, since conducting unauthorized activities may result in enforcement action.

(b) A person requesting an applicability determination shall submit to the Department, at the address set forth at N.J.A.C. 7:7-1.6, the following:

1. A completed application form described at N.J.A.C. 7:7-27.3(c)1 and available from the Department at the address set forth at N.J.A.C. 7:7-1.6, including a written description of the site and the proposed development including the dimensions, number, and uses of any proposed structures; the length of any proposed linear development; and the number of any parking spaces proposed;

2. A copy of the site plan or survey for the proposed project; and

3. A copy of a USGS quad map or local street map with the project site clearly indicated.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

Subchapter 3 GENERAL PROVISIONS FOR PERMITS-BY-RULE, GENERAL PERMITS-BY-CERTIFICATION, AND GENERAL PERMITS

N.J. Admin. Code § 7:7-3.1 Purpose and scope

This subchapter sets forth the standards for the Department to issue, by rulemaking, permits-by-rule, general permits-by-certification, and general permits; the use of these permits to conduct authorized activities; the standards governing the use of more than one of these permits on a single site; the duration of authorizations under these permits; and the conditions that apply to these permits.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.2 Standards for issuance, by rulemaking, of permits-by-rule, general permits-by-certification, and general permits

(a) The Department will, in accordance with the rulemaking provisions of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., promulgate each permit-by-rule, general permit-by-certification, or general permit after publication of a notice of rule proposal in the New Jersey Register and consideration of public comment.

(b) The Department will promulgate a permit-by-rule, general permit-by-certification, or general permit only if all of the following conditions are met:

1. The Department determines that the regulated development will cause only minimal adverse environmental impacts when performed separately, will have only minimal cumulative adverse impacts on the environment, and is in keeping with the legislative intent to protect and preserve the coastal area from inappropriate development;

2. The Department determines that the development will be in conformance with the purposes of applicable statutes; and

3. The Department has provided public notice and an opportunity for public comment with respect to the proposed permit-by-rule, general permit-by-certification, or general permit. After a general permit-by-certification or general permit has been promulgated pursuant to this subchapter, the Department will not hold public hearings on individual applications for authorization under a general permit-by-certification or general permit.

(c) Each permit-by-rule, general permit-by-certification, or general permit shall contain a specific description of the type(s) of development which are authorized, including limitations for any single operation, to ensure that the conditions of (b)1 and 2 above are satisfied. At a minimum, these limitations shall include:

1. The size and type of the development that may be undertaken; and

2. A precise description of the geographic area to which the permit-by-rule, general permit-by-certification, or general permit applies.

(d) The Department will include in each permit-by-rule, general permit-by-certification, or general permit promulgated pursuant to this subchapter appropriate conditions applicable to particular types of sites or development which must be met in order for a proposed development or activity to qualify for authorization under the permit-by-rule, general permit-by-certification, or general permit.

(e) The Department may, by undertaking rulemaking in accordance with (a) above, repeal a permit-by-rule, general permit-by-certification, or general permit, and thereafter require individual permits for development previously covered by the permit-by-rule, general permit-by-certification, or general permit, if it finds that the permit-by-rule, general permit-by-certification, or general permit no longer meets the purposes of applicable statutes and of this chapter.

History

• Renumbered from N.J.A.C. 7:7-7.1 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.3 Use of a permit-by-rule, or an authorization pursuant to a general permit-by-certification or a general permit to conduct regulated activities

(a) An activity that meets the requirements of a permit-by-rule may be conducted without prior Department approval, except that activities under the permits-by-rule at N.J.A.C. 7:7-4.4, 4.5, and 4.9 may be conducted only after the Department has issued the waterfront development permit that is a necessary condition of those permits-by-rule.

(b) An activity that meets the requirements of a general permit-by-certification may be conducted when the person proposing to conduct the activity receives the automatic authorization resulting from completion of the application submission through the Department's electronic system in accordance with N.J.A.C. 7:7-5.

(c) An activity that meets the requirements of a general permit may be conducted when the person proposing to conduct the activity receives authorization from the Department in accordance with N.J.A.C. 7:7-26.

(d) A permit-by-rule or an authorization under a general permit-by-certification or general permit does not relieve the person conducting the authorized regulated activities from the obligation to obtain any other applicable permits or approvals required by law.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.4 Use of more than one permit on a single site

(a) A person may undertake a regulated activity more than once on a single site. The activity may be authorized each time under a single permit-by-rule, general permit-by-certification, or general permit, provided the individual limits and conditions of the permit are not exceeded.

(b) A person may undertake more than one regulated activity on a single site. The activities may be authorized under one or more permit-by-rule, general permit-by-certification and/or general permit, provided the individual limits and conditions of each permit are not exceeded.

(c) Once the limits and conditions of a permit-by-rule, general permit-by-certification, and/or general permit have been reached on a single site:

1. No further activities under that permit can be authorized on that site, regardless of how much time passes, or whether the site is subsequently subdivided or transferred to a new owner; and

2. A person seeking to undertake the regulated activity on that site must obtain an individual permit under this chapter authorizing the regulated activity.

(d) On a single site, the following may be used in combination with an individual permit:

1. Any permit-by-rule;

2. An authorization under any general permit-by-certification; or

3. An authorization under one or more of the following general permits:

i. General permit 4 for the development of one or two single-family homes or duplexes, at N.J.A.C. 7:7-6.4;

ii. General permit 5 for the expansion or reconstruction (with or without expansion) of a single-family home or duplex, at N.J.A.C. 7:7-6.5; or

iii. General permit 12 for the landfall of utilities, at N.J.A.C. 7:7-6.12.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.5 Duration of an authorization under a general permit-by-certification

(a) An authorization under a general permit-by-certification is valid for five years from the date of issuance of the authorization.

(b) The five-year term of an authorization under a general permit-by-certification shall not be extended.

(c) All regulated activities being conducted pursuant to an authorization under a general permit-by-certification shall immediately cease if the authorization expires.

(d) If an authorization under a general permit-by-certification expires and the person intends to commence or continue the regulated activities, the person shall obtain a new authorization or permit under this chapter authorizing the regulated activities.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.6 Duration of an authorization under a general permit for which an application was declared complete for review prior to July 6, 2015

(a) This section sets forth the duration of an authorization under a general permit for which the application was declared complete for review prior to July 6, 2015. The duration of an authorization under a general permit for which an application is declared complete for review on or after July 6, 2015 is set forth in N.J.A.C. 7:7-3.7.

(b) An authorization governed by this section is valid for five years from the date of issuance of the authorization.

(c) The five-year term of an authorization governed by this section shall not be extended.

(d) Except where construction has commenced under (e) below, all regulated activities being conducted pursuant to an authorization governed by this section shall immediately cease if the authorization expires.

(e) If construction pursuant to an authorization governed by this section was commenced prior to the expiration of the authorization, construction can continue to completion provided there are no cumulative lapses in construction activity of greater than one year.

1. For the purposes of this subsection, "construction" means having completed the foundations for buildings or structures, the subsurface improvements for roadways, or the necessary excavation and installation of bedding materials for utility lines. To determine if construction of a development or part of a development has begun, the Department shall evaluate such proofs as may be provided by the applicant including, but not limited to, the following: documentation that the local construction official has completed the inspection at N.J.A.C. 5:23-2.18(b)1 i(2) or (b)1i(3) for foundations of structures; reports from the municipal engineer documenting inspections of road bed construction; or billing receipts documenting the completion of the above construction activities. "Construction" does not include clearing vegetation, bringing construction materials to the site, or site grading or other earth work associated with preparing a site for construction.

(f) If construction pursuant to an authorization governed by this section is not commenced prior to the expiration of the authorization, construction can commence and subsequently continue only if a new authorization or permit under this chapter is obtained authorizing the regulated activity.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.7 Duration of an authorization under a general permit for which an application is deemed complete for review on or after July 6, 2015

(a) This section sets forth the duration of an authorization under a general permit for which the application is declared complete for review on or after July 6, 2015. The duration of an authorization under a general permit for which an application was declared complete for review prior to July 6, 2015 is set forth in N.J.A.C. 7:7-3.6.

(b) Except as provided in (c) below, an authorization governed by this section is valid for five years from the date of issuance of the authorization.

(c) The five-year term of an authorization governed by this section may be extended one time for five years pursuant to N.J.A.C. 7:7-27.3.

(d) All regulated activities being conducted pursuant to an authorization governed by this section shall immediately cease if the authorization expires, including any extension thereof under N.J.A.C. 7:7-27.3.

(e) If an authorization governed by this section expires and the person intends to commence or continue the regulated activities, the person shall obtain a new authorization or permit under this chapter authorizing the regulated activities.

1. If no regulated activities have occurred prior to the expiration of the authorization, the Department shall issue a new authorization under the general permit only if the project is revised where necessary to comply with the requirements of this chapter in effect when the application for the new authorization is declared complete for review;

2. If any regulated activities have occurred prior to the expiration of the authorization, the Department shall issue a new authorization under the general permit only if the project is revised where feasible to comply with the requirements of this chapter in effect when the application for the new authorization is declared complete for review. In determining the feasibility of compliance with the requirements in effect at the time the application is declared complete for review, the Department shall consider the amount of construction that has been completed prior to the expiration of the original authorization, the amount of reasonable financial investment that has been made in the original design consistent with the requirements applicable under the original authorization, and whether continuing construction as approved under the original authorization would have an adverse impact on the environment.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-3.8 Conditions applicable to a permit-by-rule, or to an authorization pursuant to a general permit-by-certification or a general permit

(a) A person conducting regulated activities pursuant to a permit-by-rule, or pursuant to an authorization under a general permit-by-certification or general permit, shall comply with:

1. The conditions set forth in the permit-by-rule, general permit-by-certification, or general permit itself; and

2. The conditions that apply to all permits at N.J.A.C. 7:7-27.2.

(b) In addition to the conditions that apply to every authorization pursuant to a general permit under (a) above, the Department shall establish conditions in a specific authorization pursuant to a general permit, on a case-by-case basis, as required to ensure the authorized regulated activity meets all applicable requirements of this chapter and its enabling statutes.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

Subchapter 4 PERMITS-BY-RULE

N.J. Admin. Code § 7:7-4.1 Permit-by-rule 1 - expansion of a single-family home or duplex

(a) This permit-by-rule authorizes the expansion of a legally constructed, habitable single-family home or duplex on the non-waterward sides of the single-family home or duplex, provided the expansion:

1. Is not proposed on a beach, dune, or wetland;

2. Meets the requirements of N.J.A.C. 7:7-9.25; and

3. Does not exceed a cumulative surface area of 400 square feet on the property constructed after July 19, 1994. For example, a 200 square foot expansion of a single family home or duplex could be authorized under this permit-by-rule and an additional 200 square foot expansion could later be authorized under this permit-by-rule, since the cumulative footprint of the development for both expansions would not exceed 400 square feet on the property. However, a property on which a 300-square-foot expansion was already constructed pursuant to a permit-by-rule would not be eligible for another permit-by-rule subsequently for an additional 200-square-foot expansion since the cumulative total footprint of development for both expansions would exceed 400 square feet.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(1) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.2 Permit-by-rule 2 - development of a single-family home or duplex and/or accessory development on a bulkheaded lagoon lot

(a) This permit-by-rule authorizes the development (including expansion or reconstruction and expansion) of a single-family home or duplex and/or accessory development (such as garages, sheds, pools driveways, grading, excavation, and clearing excluding shore protection structures) provided the single family home or duplex and accessory development are located on a bulkheaded lagoon lot and provided the proposed single-family home or duplex and/or accessory structures comply with all of the following:

1. Development under this permit-by-rule shall not result in development of more than one single-family home or duplex either solely or in conjunction with a previous development as defined at N.J.A.C. 7:7-2.2(b)8;

2. The site is located on a man-made lagoon lot, with an existing bulkhead along the entire waterfront portion of the site;

3. All waterfront portions of the site are protected by a currently serviceable bulkhead;

4. There are no wetlands on the site landward of the bulkhead;

5. The proposed single family home or duplex and accessory structures, excluding decks, are set back a minimum of 15 feet from the waterward face of the bulkhead. If there is no alternative to locating the proposed single family home or duplex and accessory structures at least 15 feet landward of the bulkhead, the setback shall be reduced if an engineering certification is provided demonstrating that, after the proposed development has been constructed, the shore protection structure can be replaced within 18 inches of the existing bulkhead and a conservation restriction is recorded for the property which states that any reconstruction of a bulkhead shall be within 18 inches of the existing bulkhead;

6. A silt fence is erected landward of the bulkhead with a 10-foot landward return on each end prior to construction. This fence shall be maintained and remain in place until all construction and landscaping activities are completed;

7. If the development includes the construction of a driveway, any newly constructed portion of the driveway shall be covered with a permeable material or else be pitched to drain all runoff onto permeable areas of the site;

8. The development shall meet the requirements of N.J.A.C. 7:7-9.25;

9. The single family home or duplex shall be serviced by an existing municipal sewer system; and

10. All sub-gravel liners must be made of filter cloth or other permeable material.

History

• Amended by 47 N.J.R. 422(a), effective 2/2/2015

N.J. Admin. Code § 7:7-4.3 Permit-by-rule 3 - placement of public safety or beach/dune ordinance signs on beaches or dunes and placement of signs on beaches or dunes at public parks

(a) This permit-by-rule authorizes the placement of:

1. Public safety or beach/dune ordinance signs on beaches and dunes, provided no footings are required; and

2. Signs on beaches or dunes at public parks by governmental entities.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(4) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.4 Permit-by-rule 4 - construction of nonresidential docks, piers, boat ramps, and decks located landward of mean high water line

(a) This permit-by-rule authorizes the construction of nonresidential docks, piers, and boat ramps located landward of the mean high water line, provided that a waterfront development permit has been obtained for the construction waterward of the mean high water line.

(b) The structure shall meet the following requirements:

1. The width of the structure landward of the mean high water line shall not exceed the width of the structure waterward of the mean high water line; and

2. For docks and piers, the width of the structure over wetlands shall not exceed six feet and the height of the structure shall be a minimum of four feet.

(c) This non permit-by-rule also authorizes the construction of a nonresidential deck located landward of the mean high water line, provided:

1. The deck is not located on a beach, dune, or wetland;

2. The construction does not require clearing of forest vegetation; and

3. The deck does not exceed a footprint area of 400 square feet.

(d) This permit-by-rule does not authorize a boat ramp located within wetlands.

(e) The waterfront development permit for the construction waterward of the mean high water line may include additional conditions (including, but not limited to, public access to the waterfront) on the upland construction to ensure compliance with this chapter.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(5) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.5 Permit-by-rule 5 - construction of portion of a recreational dock or pier located landward of mean high water line

(a) This permit-by-rule authorizes the construction of the portion of a recreational dock or pier located landward of the mean high water line at a residential development, provided that a waterfront development permit has been obtained for the construction waterward of the mean high water line.

(b) The structure shall meet the following requirements:

1. The width of the structure landward of the mean high water line shall not exceed the width of the structure waterward of the mean high water line; and

2. Over wetlands, the width of the structure shall not exceed six feet and the height of the structure shall be a minimum of four feet.

(c) The waterfront development permit for the construction waterward of the mean high water line may include additional conditions on the upland construction to ensure compliance with this chapter. For example, the waterfront development permit may have a condition requiring the dock to cross the wetlands at the narrowest point on the property or to allow continued access along the shoreline.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(6) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.6 Permit-by-rule 6 - reconstruction of a residential or commercial development within the same footprint

(a) Other than reconstruction within the CAFRA area that meets the exemption from a CAFRA permit at N.J.A.C. 7:7-2.2(c)3, this permit-by-rule authorizes the reconstruction, within the same footprint, of a legally constructed residential or commercial development that has been or could have been legally occupied in the most recent five-year period, provided that such reconstruction:

1. Is in compliance with existing requirements or codes of municipal, State, and Federal law;

2. Does not result in the enlargement or relocation of the footprint of the development;

3. In the case of a residential development, does not result in an increase in the number of dwelling units;

4. In the case of a commercial development, does not result in an increase in the number of parking spaces or equivalent paved area associated with the development;

5. Meets the requirements of N.J.A.C. 7:7-9.25; and

6. Does not increase the area covered by buildings and/or asphalt or concrete pavement.

(b) This permit-by-rule does not apply to repairs or maintenance of the residential or commercial development, such as replacing siding, windows or roofs.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(7) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.7 Permit-by-rule 7 - expansion or relocation (with or without expansion) landward or parallel to the mean high water line of the footprint of a residential or commercial development

(a) This permit-by-rule authorizes the expansion or relocation (with or without expansion) landward or parallel to the mean high water line of the footprint of a legally constructed residential development, including accessory development such as sheds, garages, pools, and driveways, or commercial development that has been or could have been legally occupied in the most recent five-year period, provided:

1. The expansion or relocation is in compliance with the applicable requirements or codes of municipal, State, and Federal law;

2. Except as provided in (a)8 below, the expansion or relocation is not proposed on a beach, dune, or wetland;

3. In the case of residential development, the expansion does not result in an increase in the number of dwelling units;

4. In the case of commercial development, the expansion does not result in an increase in the number of parking spaces or equivalent parking area associated with the development;

5. Except as provided in (a)8 below, the expansion or relocation does not result in additional impacts to special areas as defined at N.J.A.C. 7:7-9;

6. The expansion or relocation meets the requirements of N.J.A.C. 7:7-9.25 and 9.26; and

7. The expansion does not increase the surface area of the footprint of the development by a cumulative total of more than 400 square feet on the property constructed after July 19, 1994. For an example of how the cumulative total limitation would apply, see (a)3 above.

8. Where the expansion includes structures such as stairs or an ADA-compliant ramp, which are constructed only for access to a residential or commercial development required to be elevated pursuant to the New Jersey Uniform Construction Code, N.J.A.C. 5:23, in accordance with the Flood Hazard Area Control Act Rules, N.J.A.C. 7:13, there is no feasible alternative location for these structures outside of a beach, dune, wetland, or other special areas as defined at N.J.A.C. 7:7E-3. ADA means the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 1201 et seq.).

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(8) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.8 Permit-by-rule 8 - construction of a utility line attached to a bridge or culvert

(a) This permit-by-rule authorizes the construction of a utility line, including cable (for example, electric, television, or fiber optic), telecommunication, wastewater, petroleum, natural gas, or water, attached to a bridge or culvert. This permit-by-rule applies only to that portion of the utility line that will be constructed across the tidal waterway up to the mean high water line, provided a tidelands instrument has been obtained for the utility line. The construction of the utility line shall comply with the following:

1. No excavation, dredging or filling shall be undertaken within the water body over which the utility line crosses;

2. The utility line shall be firmly attached to the existing bridge or culvert structure so that no part of the utility line, its encasement, or any attachment device extends above or below the existing bridge or culvert structure;

i. If the crossing is a bridge, the utility line, its encasement, and all attachment devices shall be located entirely above the elevation of the low chord of the superstructure and entirely below the elevation of the bridge surface;

ii. If the crossing is a culvert, the utility line, its encasement, and all attachment devices shall be located entirely above the overt elevation of the culvert and entirely below the elevation of the top of the culvert;

iii. If the utility line is a pipeline that conveys any substance other than potable water, the utility line shall be sufficiently encased within ductile iron or concrete to protect the utility line from damage from impact with floating debris during floods; and

iv. If there is a predominant direction of flow within the water body, the utility line shall be attached to the downstream face of the bridge or culvert;

3. The installation of the utility line shall have no adverse impacts to special areas as described at N.J.A.C. 7:7-9; and

4. Construction equipment shall be operated from land, the top of the bridge or culvert, or from barges, and shall under no circumstances be allowed to enter the water body.

(b). This permit-by-rule does not relieve the permittee from the obligation of obtaining all necessary approvals from the U.S. Army Corps of Engineers.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(9) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.9 Permit-by-rule 9 - previous filling of tidelands associated with an existing single family home or duplex

(a) Where a single family home or duplex is proposed or exists on a lot which was previously filled and is not part of a larger development, the prior filling of any lands on the lot formerly flowed by the tide shall be considered by the Department to be authorized under this permit-by-rule, provided the filling appears on the applicable Tidelands Map.

(b) This permit-by-rule applies only if a tidelands instrument has been obtained for all filled tidelands areas.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(10) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.10 Permit-by-rule 10 - construction of portion of boat ramp located landward of the mean high water line at a residential development

(a) This permit-by-rule authorizes the construction of the portion of a boat ramp landward of the mean high water line at a residential development, provided that a waterfront development permit has been obtained for the construction waterward of the mean high water line.

(b) This permit-by-rule does not authorize a boat ramp located within wetlands.

(c) The width of the boat ramp landward of the mean high water line shall not exceed the width of the boat ramp waterward of the mean high water line.

(d) The waterfront development permit for the construction waterward of the mean high water line may include additional conditions on the upland construction to ensure compliance with this chapter.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(11) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.11 Permit-by-rule 11 - construction and/or installation of a boat wash wastewater system at a marina, boatyard, or boat sales facility

(a) This permit-by-rule authorizes the construction and/or installation, at a marina, a boatyard, or a boat sales facility, of a boat wash wastewater system that prevents the discharge of boat wash wastewater to the waters of the State, including a boat wash wastewater system necessary to comply with the Equipment and Vehicle Washing provisions of the New Jersey Pollutant Discharge Elimination System (NJPDES) Basic Industrial Stormwater General Permit NJ0088315 (5G2) established under the NJPDES rules, N.J.A.C. 7:14A. This permit-by-rule authorizes the construction of a boat wash wastewater system, including an impervious wash pad or pads connected to a collection system, reclaim/recycling system, or infrastructure to connect to an existing sanitary sewer. This permit-by-rule additionally authorizes a sump or other mechanism to collect the boat wash wastewater, shed(s) to house the treatment system, and/or a tank(s) to store the wash water for reuse or collection, as applicable for the system utilized. This permit-by-rule authorizes at any one marina, boatyard, or boat sales facility one to three wash pads and a maximum of three boat wash wastewater systems.

(b) This permit-by-rule does not relieve a marina, boatyard, or boat sales facility of the obligation to obtain any other permits from the Department, including a Treatment Works Approval for a sanitary sewer connection or a Basic Industrial Stormwater General Permit NJ0088315 (5G2).

(c) Each boat wash wastewater system authorized under this permit-by-rule shall:

1. Be located on the upland portion of the marina, boatyard, or boat sales facility;

2. Be located outside of any wetlands;

3. Include a wash pad that is:

(1) Equipped with a pit, trough, trench drain, or settling chamber with sump or similar type pump;

(2) Bermed or pitched to drain all boat wash wastewater to the pit, trough, trench drain, or settling chamber;

(3) Less than or equal to a surface area of 1,250 square feet; and

(4) Connected to a reclaim/recycling system, collection tank to store boat wash wastewater for reuse or collection/pump out, or a sanitary sewer;

4. If the system has a shed or storage unit to house the boat wash wastewater system, the shed or storage unit shall be:

(1) Used exclusively to house the boat wash wastewater system;

(2) Less than or equal to 150 square feet in size; and

(3) Limited to one shed or storage unit per system; and

5. If the system will discharge to a sanitary sewer, connection shall be to an existing sewer line located on-site or immediately adjacent to the site.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(12) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.12 Permit-by-rule 12 - construction of one to three wind turbines less than 200 feet in height having a cumulative rotor swept area no greater than 2,000 square feet

(a) This permit-by-rule authorizes the construction of one to three wind turbines less than 200 feet in height, measured from the ground surface to the tip of the blade at its highest position, and having a cumulative rotor swept area no greater than 2,000 square feet, provided:

1. No portion of the wind turbine(s), including blades, tower and site disturbance, shall be located in, on or over dunes, beaches, wetlands, coastal bluffs, or wild and scenic river corridors;

2. No wind turbine tower(s) or site disturbance shall be located in floodways;

3. The wind turbine(s), including blades, tower and site disturbance, is set back a minimum of 50 feet, as measured parallel to the ground:

(1) Landward of the mean high water line and the inland limit of any beach or dune. This setback does not apply to manmade lagoons and manmade ditches; and

(2) From the boundary of any wetlands;

4. No portion of the wind turbine, including blades, tower, and site disturbance, shall be located within an area mapped as threatened or endangered species habitat on the Department's Landscape Maps of Habitat for Endangered, Threatened and Other Priority Wildlife (Landscape Maps) except as provided at (a)4i and ii below. The Landscape Maps are available from the Department's Division of Fish and Wildlife, Endangered and Nongame Species Program at http://www.nj.gov/dep/fgw/ensp/landscape/index.htm;

i. The wind turbine(s) is located within 120 feet of an existing building on an actively maintained lawn or area of land that has been manipulated by contouring of the soil and/or by intentional planting of flowers, grasses, shrubs, trees or other ornamental vegetation, which is maintained in such a condition by regular and frequent (at least one time per year) cutting, mowing, pruning, planting, weeding or mulching; or

ii. The wind turbine(s) is located on legally existing impervious cover;

5. If the wind turbine(s) is more than 120 feet tall, measured from the ground surface to the tip of the blade at its highest position, the tower shall be a freestanding monopole(s); and

6. No lighting shall be placed on or directed at the wind turbine except for lighting required by the Federal Aviation Administration. Shielded ground level security lighting may be used. Lighting is shielded when it is covered in a way that light rays are not emitted above the horizontal plane of the light.

(b) Development under this permit-by-rule shall not result in construction of more than three wind turbines on a site, either solely or in conjunction with a previous wind turbine development.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(13) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.13 Permit-by-rule 13 - installation of solar panels on a maintained lawn or landscaped area at a single-family home or duplex lot

(a) This permit-by-rule authorizes the installation of solar panels on a maintained lawn or landscaped area at a single-family home or duplex lot, provided:

1. The solar panel development shall not be located in or on dunes, beaches, wetlands, floodways, or coastal bluffs;

2. The solar panel development shall be set back a minimum of 50 feet from the inland limit of any wetlands, beach, or dune;

3. The maintained lawn or landscaped area is not subject to a previous coastal permit requirement that it remain as vegetative cover; and

4. The solar panel development shall not be located within an area mapped as threatened or endangered species habitat on the Department's Landscape Maps of Habitat for Endangered, Threatened and Other Priority Wildlife (Landscape Maps), except as provided at (a)4i and ii below. The Landscape Maps are available from the Department's Division of Fish and Wildlife, Endangered and Nongame Species Program at http://www.nj.gov/dep/fgw/ensp/landscape/index.htm;

i. The solar panel(s) is located within 120 feet of an existing building on an actively maintained lawn or area of land that has been manipulated by contouring of the soil and/or by intentional planting of flowers, grasses, shrubs, trees or other ornamental vegetation, which is maintained in such a condition by regular and frequent (at least one time per year) cutting, mowing, pruning, planting, weeding or mulching; or

ii. The solar panel(s) is located on legally existing impervious cover.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(14) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.14 Permit-by-rule 14 - reconfiguration of any legally existing dock, wharf, or pier at a legally existing marina

(a) This permit-by-rule authorizes the reconfiguration of any legally existing dock, wharf, or pier, including pilings, located at a legally existing marina, provided the marina is not located within shellfish habitat, submerged vegetation habitat, or a wetland.

(b) Activities that qualify for this permit-by-rule also qualify for a water quality certificate pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq.

(c) The proposed reconfiguration shall:

1. Not extend outside of the area covered by an existing Tidelands instrument;

2. Not result in an increase in the number of boat slips;

3. Not hinder navigation;

4. Not increase the total linear footage of docks or piers within the marina;

5. Minimize the water area covered by structures by:

i. Providing a minimum of eight feet of open water between any docks if the combined width of the docks over water exceeds eight feet; and

ii. For sites which have existing dock or pier structures exceeding eight feet in width over water areas and/or wetlands, which were constructed prior to September 1978 and for which the applicant proposes to relocate, the existing oversized structures must be reduced to a maximum of eight feet in width over water areas and six feet in width over wetlands and intertidal flats; and

6. Provide a minimum of four feet from all property lines, for docks which are perpendicular to the adjacent bulkhead or shoreline.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(15) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.15 Permit-by-rule 15 - placement of sand fencing to create or sustain a dune

(a) This permit-by-rule authorizes the placement of sand fencing to create or sustain a dune, provided the sand fencing complies with (a)1 through 3 below. This permit-by-rule does not authorize the excavation or grading of a dune. The sand fencing shall:

1. Be placed on the landward side of the dune;

2. Be placed parallel to the mean high water line; and

3. Not prevent perpendicular public access to the beach.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(16) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.16 Permit-by-rule 16 - placement of land-based upwellers and raceways for aquaculture activities

(a) This permit-by-rule authorizes the placement of land-based upwellers and raceways, including intakes and discharges, for shellfish aquaculture activities. Activities that qualify for this permit-by-rule also qualify for a water quality certificate pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. The aquaculture activities shall comply with the following:

1. The structures are located on the upland portion of a lot with a legally existing, functioning bulkhead;

2. No grading, excavation, filling, or placement of a structure(s) is undertaken on a beach, dune, or wetland; and

3. The discharge from the aquaculture activities is to a water body and not directly into a wetland.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(17) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.17 Permit-by-rule 17 - placement of predator screens and oyster spat attraction devices within a shellfish lease area

(a) This permit-by-rule authorizes the placement of predator screens and oyster spat attraction devices in an area subject to a valid shellfish lease pursuant to N.J.S.A. 50:1-23. Upon expiration or termination of the shellfish lease, or the cessation of the use of predator screens and oyster spat attraction devices, whichever occurs first, within five days the permittee shall remove all predator screens and oyster spat attraction devices placed within the lease area. This permit-by-rule does not authorize the placement of shell within a shellfish lease area. Activities that qualify for this permit-by-rule also qualify for a water quality certificate pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. The placement of predator screens and oyster spat attraction devices shall comply with the following:

1. So as not to pose a hazard to navigation, predator screens shall not extend more than six inches above the substrate and oyster spat attraction devices shall not extend more than 24 inches above the substrate; and

2. No activity undertaken pursuant to this permit-by-rule shall prevent the catching and taking of free swimming fish from the tidal waters of the State in any lawful manner pursuant to N.J.S.A. 50:1-33.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(18) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.18 Permit-by-rule 18 - placement of shellfish cages within a shellfish lease area

(a) This permit-by-rule authorizes the placement of shellfish cages in an area subject to a valid shellfish lease pursuant to N.J.S.A. 50:1-23. Upon expiration or termination of the shellfish lease, or the cessation of the use of shellfish cages, whichever occurs first, within five days the permittee shall remove all shellfish cages placed within the lease area. Activities that qualify for this permit-by-rule also qualify for a water quality certificate pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. The placement of shellfish cages shall comply with the following:

1. There shall be a minimum of four feet of water between the top of any cage and the water surface at mean low water;

2. The cages shall be continuously checked and repaired to ensure that they are not displaced off the lease area;

3. The cages shall be constructed of non-polluting materials; and

4. No activity undertaken pursuant to the permit-by-rule shall prevent the catching and taking of free swimming fish from the tidal waters of the State in any lawful manner pursuant to N.J.S.A. 50:1-33.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(19) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.19 Permit-by-rule 19 - construction and/or installation of a pumpout facility and/or pumpout support facilities

(a) This permit-by-rule authorizes the construction and/or installation of a pumpout facility and/or pumpout support facilities in the circumstances set forth at (a)1 and 2 below. The construction and/or installation of a pumpout facility or pumpout support facility shall have no adverse impacts to any special areas described at N.J.A.C. 7:7-9.

1. At a marina, boat yard, boat sales facility, yacht club, restaurant, boat ramp, or other waterfront facility, the construction and/or installation of a pumpout facility and/or the construction of pumpout support facilities, such as stanchions, hydrants, piping, pumps, holding tanks, a concrete pad for a holding tank (not to exceed a surface area of 100 square feet), a platform to elevate a pump above flood level, macerator pumps, or other equipment necessary to transfer sewage from the holding tank on a boat to a sanitary sewer line or holding tank, provided the pumpout discharges to:

(1) A municipal or regional treatment plant where practicable;

(2) A subsurface sewage disposal system; or

(3) A holding tank with waste being removed by a licensed septage hauler.

(A) Any facility using a holding tank for the pumpout discharge shall maintain a record of removal of the waste.

2. A sewer line connecting a pumpout facility and/or pumpout support facility into an existing sewer line located on-site or located immediately adjacent to the site, provided:

(1) The sewer line and the area of the connection into the existing sewer are located within areas of non-porous cover;

(2) For a sewer line that connects from a pumpout facility and/or pumpout support facility that is located on an existing dock, the sewer line does not extend below the stringers of the dock; and

(3) The sewer line receives a Treatment Works Approval as required in accordance with the Department's rules at N.J.A.C. 7:14A from the Department's Division of Water Quality.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(20) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.20 Permit-by-rule 20 - implementation of a sediment sampling plan for sampling in a water area as part of a dredging or dredged material management activity or as part of a remedial investigation of a contaminated site

(a) This permit-by-rule authorizes the implementation of a sediment sampling plan for sampling in a water area as part of a dredging or dredged material management activity or as part of a remedial investigation of a contaminated site. Activities that qualify for this permit-by-rule also qualify for a water quality certificate pursuant to Section 401 of the Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. This permit-by-rule authorizes the implementation of a sediment sampling plan for sampling to be conducted within a water area described at N.J.A.C. 7:7-12.1, as part of a dredging or dredged material management activity or as part of a remedial investigation, provided:

1. If the sampling is part of a dredging or dredged material management activity, the sediment sampling plan shall be prepared in accordance with chapter Appendix G, incorporated herein by reference, and approved in writing by the Department's Office of Dredging and Sediment Technology; or

2. If the sampling is part of a remedial investigation of a contaminated site, the sediment sampling plan shall be prepared in accordance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and approved by the Department or certified by a Licensed Site Remediation Professional in accordance with the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS), N.J.A.C. 7:26C.

History

• Renumbered from N.J.A.C. 7:7-7.2(a)(21) by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.21 Permit-by-rule 21 - application of herbicide within coastal wetlands to control invasive plant species

(a) This permit-by-rule authorizes the application of herbicide within coastal wetlands to control invasive plant species, provided:

1. The area to which the herbicide is applied shall not exceed a total area of one-quarter acre on a site;

2. The activities do not adversely affect the habitat of any threatened or endangered wildlife or plant species, as described at N.J.A.C. 7:7-9.36; and

3. When conducted within waters of the State or waters of the United States, the activities are conducted pursuant to an aquatic pesticide permit issued by the Department's Bureau of Licensing and Pesticide Operations.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.22 Permit-by-rule 22 - construction of a swimming pool, spa, or hot tub and associated decking on a bulkheaded lot without wetlands

(a) This permit-by-rule authorizes the construction of a swimming pool, spa, or hot tub and associated decking (for example, wood or recycled plastic planking, concrete, or paver blocks) on a lot with a legally existing, functioning bulkhead along the entire waterfront portion of the site and no wetlands landward of the bulkhead, provided:

1. No excavation, grading, or filling of a beach or dune is conducted;

2. The swimming pool, spa, or hot tub is set back a minimum of 15 feet from the waterward face of the bulkhead;

3. The footprint of the area covered by the current construction in combination with any existing swimming pool, spa, and/or hot tub, constructed under this permit-by-rule after July 6, 2015, at a residential development does not exceed a cumulative total of 750 square feet on the lot. For example, a 600-square-foot in-ground swimming pool could be constructed on a lot under this permit-by-rule and at a later time an additional 150-square-foot spa or hot tub could be constructed on the lot under this permit-by-rule, because the cumulative footprint of the development for both structures would not exceed 750 square feet. However, the construction of a 200-square-foot spa or hot tub would not be authorized on a lot under this permit-by-rule where a 600-square-foot in-ground swimming pool had already been constructed pursuant to this permit-by-rule, because the cumulative total footprint of development for both structures would exceed 750 square feet;

4. The footprint of the area covered by the current construction in combination with any existing swimming pool, spa, and/or hot tub, including associated decking, constructed under this permit-by-rule after July 6, 2015, at a development other than a residential development does not exceed a cumulative total of 750 square feet on the lot. For example, a 600-square-foot in-ground swimming pool and associated decking could be constructed on a lot under this permit-by-rule and at a later time an additional 150-square-foot spa or hot tub could be constructed on the lot under this permit-by-rule, because the cumulative footprint of the development for both structures would not exceed 750 square feet. However, the construction of a 200-square-foot spa or hot tub would not be authorized on a lot under this permit-by-rule where a 600-square-foot in-ground swimming pool and associated decking had already been constructed pursuant to this permit-by-rule, because the cumulative total footprint of development for both structures would exceed 750 square feet;

5. The backwash system of the swimming pool, spa, or hot tub does not discharge to the adjacent water body;

6. Prior to construction, a silt fence is erected landward of the bulkhead with a 10-foot landward return on each end. The silt fence shall be maintained and remain in place until all construction and landscaping activities are completed;

7. All subgravel liners are made of filter cloth or other permeable material; and

8. The swimming pool, spa, or hot tub and associated decking are not constructed on a coastal bluff.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-4.23 Permit-by-rule 23 - installation of an at-grade dune walkover at a residential, commercial, or public development other than a single-family home or duplex

(a) This permit-by-rule authorizes the installation of an at-grade dune walkover, such as a stabilization mat, at a residential, commercial, or public development other than a single-family home or duplex, provided:

1. Only one walkover is installed at the site unless New Jersey 2012 High Resolution Orthophotography (available for download at http://njgin.state.nj.us/NJ_NJGINExplorer/DataDownloads.jsp) reflects that more than one walkover was present on the site on the date depicted in the image. In such case, the maximum number of walkovers that may be installed shall be equal to the number of walkovers reflected on the 2012 orthophotography;

2. The installation does not require the grading or excavation of a beach or dune;

3. For non-commercial properties, the width of the at-grade walkover structure does not exceed six feet and the total width of the at-grade walkover, fencing, and/or edging does not exceed eight feet;

4. For commercial properties, the width of the at-grade walkover structure does not exceed 10 feet and the total width of the at-grade walkover, fencing, and/or edging does not exceed 12 feet;

5. The walkover is fenced on both sides using sand fencing, split rail fencing, or open handrails, unless prohibited by the municipality; and

6. The activity complies with any applicable management plan for protection of State or Federally listed threatened or endangered species, as approved by the Department and the USFWS, and/or the endangered or threatened wildlife or vegetation species habitat rule, N.J.A.C. 7:7-9.36.

History

• Adopted by 50 N.J.R. 361(a), effective 1/16/2018

Subchapter 5 GENERAL PERMITS-BY-CERTIFICATION

N.J. Admin. Code § 7:7-5.1 General permit-by-certification 10 - reconstruction of a legally existing functioning bulkhead in-place or upland of a legally existing functioning bulkhead

(a) This permit-by-certification authorizes the reconstruction of a legally existing bulkhead in-place or upland of a legally existing functioning bulkhead, provided:

1. The replacement bulkhead is located upland of any wetlands;

2. The construction of a bulkhead subject to wave run-up forces (that is, in a V zone as described at N.J.A.C. 7:7-9.18) shall be designed and certified by a New Jersey licensed professional engineer to withstand the forces of wave run-up;

3. The structure shall not create net adverse shoreline movement downdrift, including erosion or shoaling;

4. The construction shall have no adverse impact to any special areas as described at N.J.A.C. 7:7-9; and

5. Clean fill from an upland source shall be used for backfill.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-5.2 General permit-by-certification 15 - construction of piers, docks, including jet ski ramps, pilings, and boatlifts in man-made lagoons

(a) This permit-by-certification authorizes the construction of piers, docks, including jet ski ramps, pilings, and boatlifts in man-made lagoons, provided:

1. The structures shall be located on individual single family or duplex lots and shall be for recreational or non-commercial use;

2. The structures, including mooring area and mooring piles, shall not extend beyond a distance of 20 percent of the width of a man-made lagoon;

3. The width of the dock or pier shall not exceed twice the clearance between the structure and the surface of the ground below or the water surface at mean high water, except for floating docks. For example, an eight foot wide dock must be elevated a minimum of four feet above the water surface at mean high water;

4. The maximum width of the structure shall be eight feet, except where crossing wetlands, where the proposed structure shall be constructed perpendicular to the shoreline to access sufficient water depth and shall not exceed six feet in width. In any case, the height of the structure over wetlands shall be a minimum of four feet;

5. Any wetlands disturbed during construction shall be restored to pre-project conditions;

6. The proposed structure, including mooring area and mooring piles, does not hinder navigation or access to adjacent docks, piers, moorings, or water areas;

7. A minimum of eight feet of open water shall be provided between any docks including jet ski ramps, if the combined width of any existing or proposed docks over the water exceeds eight feet;

8. For docks which are perpendicular to the adjacent bulkhead or shoreline, construction and placement of the dock shall be a minimum of four feet from all property lines;

9. The space between horizontal planking is maximized and the width of horizontal planking is minimized to the maximum extent practicable. Under normal circumstances, a minimum of 3/8 inch, 1/2 inch, 3/4 inch, or one inch space is to be provided for four inch, six inch, eight to 10 inch, or 12 inch plus wide planks, respectively;

10. Jet ski ramps are inclined floating docks which are typically attached to existing docks for the purpose of docking jet skis. Jet ski ramps shall not exceed eight feet in width; and

11. For sites which have existing dock structures exceeding eight feet in width over water areas and/or wetlands, which were constructed prior to September 1978 and for which the applicant proposes to increase the coverage over the water area or wetland by increasing the number or size of boat slips, docks, or piers, the existing oversized structures shall be reduced to a maximum of eight feet in width.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-5.3 General permit-by-certification 1A - installation of an elevated timber dune walkover at a residential, commercial, or public development other than a single-family home or duplex

(a) This general permit-by-certification authorizes the installation of an elevated timber dune walkover at a residential, commercial, or public development other than a single-family home or duplex, provided:

1. Only one walkover is installed at the site unless New Jersey 2012 High Resolution Orthophotography (available for download at http://njgin.state.nj.us/NJ_NJGINExplorer/DataDownloads.jsp) reflects that more than one walkover was present on the site on the date depicted in the image. In such case, the maximum number of walkovers that may be installed shall be equal to the number of walkovers reflected on the 2012 orthophotography;

2. The construction of elevated timber dune walkover is in accordance with the standards and specifications described in Beach Dune Walkover Structures (Florida Sea Grant, 1981) available from the Department at the address set forth at N.J.A.C. 7:7-1.6;

3. For non-commercial properties, the width of the walkover structure does not exceed six feet and the total width of the elevated timber walkover, fencing, and/or edging not to exceed eight feet;

4. For commercial properties, the width of the walkover structure does not exceed 10 feet and the total width of the walkover, fencing, and/or edging not to exceed 12 feet; and

5. The activity complies with any applicable management plan for protection of State and Federally listed threatened or endangered species, as approved by the Department and the USFWS, and/or the endangered or threatened wildlife or vegetation species habitat rule, N.J.A.C. 7:7-9.36.

History

• Repealed by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-5.4 Repealed

History

• Repealed by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-5.5 Reserved

History

• Repealed by R.1994 d.378, effective 7/18/1994.
• See: 26 N.J.R. 918(a), 26 N.J.R. 1561(a), 26 N.J.R. 2934(a).
• Section was "Coastal Area Review Board procedures".

Subchapter 6 GENERAL PERMITS

N.J. Admin. Code § 7:7-6.1 General permit 1 - amusement pier expansion

(a) This general permit authorizes the expansion of an existing, functional amusement pier provided that the expansion complies with the following:

1. The amusement pier was existing and functional as of July 19, 1993;

2. The expansion does not exceed by more than 25 percent the footprint of the amusement pier as it existed on July 19, 1993;

3. The expansion is located more than 150 feet landward of the mean high water line;

4. The expansion will not eliminate or adversely affect existing, direct public access from the boardwalk to the beach, unless for each access point eliminated or adversely affected another access point is provided immediately adjacent to the expanded amusement pier;

5. The expansion includes a provision for public seating and viewing at the terminal end of the expansion;

6. The expansion may consist of either structures or beach grading which does not result in change in existing beach elevations of more than one foot;

7. The expansion shall not result in excavation or grading of a dune;

8. The expanded amusement pier shall continue to be used only for amusements;

9. The expansion is consistent with the Water Quality Management Plan adopted pursuant to N.J.A.C. 7:15; and

10. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

History

• Renumbered from N.J.A.C. 7:7-7.5 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.2 General permit 2 - activities on a beach and dune

(a) This general permit authorizes the following activities on a beach and dune:

1. Routine beach maintenance activities performed in accordance with N.J.A.C. 7:7-10.2;

2. Emergency post-storm beach restoration performed in accordance with N.J.A.C. 7:7-10.3;

3. Dune creation and maintenance performed in accordance with N.J.A.C. 7:7-10.4; and

4. The construction of dune walkovers constructed in accordance with N.J.A.C. 7:7-10.4(e) and(f).

(b) The activity shall not be conducted in any wetlands.

(c) Public access to the beach shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(d) The activity is conducted in accordance with the Operation and Maintenance Manual associated with the Federal or State project, or where such manual does not exist, the activity does not compromise the design template of the engineered beach and/or dune.

(e) The activity complies with any applicable management plan for protection of State and Federally listed threatened or endangered species, as approved by the Department and the USFWS, and/or the endangered or threatened wildlife or vegetation species habitat rule, N.J.A.C. 7:7-9.36.

(f) As of November 5, 2015, the Department shall not approve authorization under this general permit to any municipality that does not have a Department-approved municipal public access plan in accordance with N.J.A.C. 7:7-16.9(c) through (m).

History

• Renumbered from N.J.A.C. 7:7-7.6 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.3 General permit 3 - voluntary reconstruction of certain residential or commercial development

(a) This general permit authorizes the voluntary reconstruction of a non-damaged legally constructed, currently habitable residential or commercial development landward of the existing footprint of development provided:

1. Such reconstruction is in compliance with existing requirements or codes of municipal, State and Federal law;

2. The reconstruction does not result in the enlargement of the footprint of the development;

3. In the case of residential reconstruction, the reconstruction does not result in an increase in the number of dwelling units;

4. In the case of commercial reconstruction:

i. The reconstruction does not result in an increase in the number of parking spaces or equivalent parking area associated with the development; and

ii. The development is consistent with the Water Quality Management Plan adopted pursuant to N.J.A.C. 7:15;

5. The reconstruction does not result in additional impacts to special areas as defined at N.J.A.C. 7:7-9;

6. The reconstruction does not increase the area covered by buildings and/or asphalt or concrete pavement;

7. The reconstruction meets the requirements of N.J.A.C. 7:7-9.25 and 9.26; and

8. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(b) Authorization under this general permit is not required for repairs or maintenance, such as replacing siding, windows, or roofs which is not regulated, unless the repair or maintenance is associated with an expansion of the footprint of development.

History

• Renumbered from N.J.A.C. 7:7-7.7 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.4 General permit 4 - development of one or two single-family homes or duplexes

(a) This general permit authorizes the development of one or two single-family homes or duplexes and/or accessory development (such as garages, sheds, pools, driveways, grading, filling, and clearing, excluding shore protection structures), provided the one or two single-family homes or duplexes and accessory development are located landward of the mean high water line.

(b) Development under this general permit shall not result in the development of more than two single-family homes or duplexes either solely or in conjunction with a previous development as defined at N.J.A.C. 7:7-2.2(b)8.

(c) Development under this general permit shall comply with N.J.A.C. 7:7-9.22, Beaches; 9.25, Flood hazard areas; 9.27, Wetlands; 9.28, Wetland buffers; and 9.36, Endangered or threatened wildlife or vegetation species habitats.

(d) In addition to meeting the requirements at (c) above, the development of two single-family homes or duplexes under this general permit on filled water's edge sites that have included a water dependent use at any time since July of 1977, shall comply with N.J.A.C. 7:7-9.23(g) of the filled water's edge rule.

(e) Development under this general permit shall comply with N.J.A.C. 7:7-9.16, Dunes, except as provided under (e)1 or 2 below:

1. Development that is located on the landward slope of a secondary or tertiary dune described at (f)1ii below, whichever is most landward, need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the site and the development meet all of the following conditions:

i. The area of the site proposed to be developed is located greater than 500 feet landward of the mean high water line of the adjacent water body;

ii. The cross-sectional area of the primary frontal dune waterward of the proposed development, as measured above the 100-year stillwater elevation and waterward of the primary frontal dune crest, is greater than 1,100 square feet. For the purpose of this subparagraph, primary frontal dune means a continuous or nearly continuous mound or ridge of sand with relatively steep waterward and landward slopes immediately landward of and adjacent to the beach, and subject to erosion and overtopping from high tides and waves during major coastal storms. Secondary and tertiary dunes means the second and third dune mound or ridge, respectively, landward from and adjacent to the primary frontal dune;

iii. The beach area adjacent to the proposed development is either naturally stable without beach nourishment or naturally accretional without beach nourishment, as determined using the method described at N.J.A.C. 7:7-9.19, Erosion hazard areas, and the information in the Department's Geographic Information System (GIS) database as found in the Historical Shorelines coverage 1836-1986; and

iv. The site disturbance, including grading, excavation and vegetation removal, is limited to that necessary to develop the single family home or duplex and/or accessory structures; or

2. Development that is located on a dune which is isolated from a beach and dune system by a paved public road, public seawall or public bulkhead, existing on July 19, 1993, need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the site and the development meet all of the following criteria:

i. The road, seawall, or bulkhead is of sufficient size to be designated as the V zone boundary on applicable FEMA flood mapping;

ii. The road, seawall or bulkhead has eliminated the protective function of the isolated dune, by providing a significant barrier to coastal processes, including storm waves and flooding;

iii. The road, seawall or bulkhead is functional and is currently maintained by a public entity;

iv. The area of proposed construction is designated as an A zone, B zone, or C zone on applicable FEMA flood mapping;

v. The site disturbance, including grading, excavation and vegetation removal, is limited to that necessary to develop the single family home or duplex and/or accessory structures; and

vi. The proposed development does not include the construction of a shore protection structure.

(f) Development under this general permit shall comply with N.J.A.C. 7:7-9.29, Coastal bluffs, if the site is located on the Atlantic Ocean, Delaware Bay, Raritan Bay, or Sandy Hook Bay. Coastal bluffs are defined at N.J.A.C. 7:7-9.29(a). If the site is not located on one of the four water bodies listed above, the development shall comply with the setback requirements at (n)1 below, unless the development meets either (g)1 or 2 below:

1. The development is located in the "developed bluff area." For the purposes of this paragraph, a "developed bluff area" is an area delineated by the limit of existing buildings, in-ground pool or tennis court that existed on July 19, 1993; or

2. The development on the coastal bluff is located landward of the developed bluff area as defined at (g)1 above, and does not exceed the cumulative surface area of the developed bluff area on the site. If all or part of the proposed development on the coastal bluff is located landward of the existing developed bluff area, an equivalent area of the existing developed bluff area shall be restored through the planting of native woody vegetation species.

(g) Development under this general permit shall comply with N.J.A.C. 7:7-9.18, Coastal high hazard areas, and 9.19, Erosion hazard areas, except as excluded under (h)1 below;

1. Development under this general permit that is located on a site partially or completely within an erosion hazard area or coastal high hazard area need not comply with the coastal high hazard areas rule, N.J.A.C. 7:7-9.18, and the erosion hazard areas rule, N.J.A.C. 7:7-9.19, if:

i. The lot was shown as a subdivided lot prior to July 19, 1993;

ii. The lot is served by a municipal sewer system; and

iii. A house or commercial building is located within 100 feet of each of the lot lines that run roughly perpendicular to the mean high water line. The 100 feet shall be measured outward from each lot line, along a line generally parallel to the mean high water line;

(h) Public access shall be provided in accordance with the public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(i) The use of plastic under landscaped or gravel areas is prohibited. All sub-gravel liners shall be made of filter cloth or other permeable material.

(j) Any driveway shall be covered with a permeable material or else shall be pitched to drain all runoff onto permeable areas of the site.

(k) For a wooded site, site clearing shall be limited to an area no more than 20 feet from the footprint of the single family home or duplex and the area necessary for driveway, septic, and utility line installations.

(l) For a site adjacent to or including surface water bodies or wetlands, a silt fence with a 10-foot landward return shall be erected at the limit of disturbance along the waterward and wetland sides of the development before construction begins. This fence shall be maintained and remain in place until all construction and landscaping is completed.

(m) Development under this general permit shall comply with the following setbacks:

1. On a site with coastal bluffs that is not located on the Atlantic Ocean, Delaware Bay, Raritan Bay or Sandy Hook Bay, the single family home or duplex and/or accessory structures shall be set back a minimum of 10 feet from the crest of the bluff provided that the development will not result in a loss of stability of the bluff or vegetation on the bluff face. Any structure that requires excavation shall be set back one foot beyond the 10 foot setback for every foot of excavation below existing grade;

2. On an oceanfront site with existing or proposed shore protection structures, the single family home or duplex and/or accessory structures (except decks) shall be set back at least 25 feet from existing or proposed oceanfront shore protection structures. This distance shall be measured from the waterward face of a bulkhead or seawall and from the top of slope on the waterward face of the revetment. This setback shall not apply to below grade structures;

3. On a non-oceanfront site with existing or proposed shore protection structures, the single-family home or duplex and/or accessory structures (except decks) shall be set back at least 15 feet from existing or proposed shore protection structures. If the single-family home or duplex and/or accessory structures cannot be located at least 15 feet landward of the shore protection structure, the Department shall reduce the required setback if an engineering certification is submitted demonstrating that, after the proposed development has been constructed, the shore protection structure can be replaced within 18 inches of the existing shore protection structure and a conservation restriction that complies with N.J.A.C. 7:7-18 is recorded for the property which states that any reconstruction of a shore protection structure shall be within 18 inches of the existing shore protection structure. A site with coastal bluffs shall instead comply with (n)1 above.

(n) This general permit does not authorize any activities regulated under the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq.

History

• Renumbered from N.J.A.C. 7:7-7.8 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.5 General permit 5 - expansion, or reconstruction (with or without expansion), of a single-family home or duplex

(a) This general permit authorizes the expansion, or reconstruction (with or without expansion), of a legally constructed, habitable single-family home or duplex and/or accessory development (such as garages, sheds, pools, driveways, grading, excavation, and clearing, excluding shore protection structures), provided the single-family home or duplex and accessory structures are located landward of the mean high water line, and provided the single-family home or duplex is not located on a bulkheaded lagoon lot.

(b) Development under this general permit shall not result in development of more than one single-family home or duplex either solely or in conjunction with a previous development as defined at N.J.A.C. 7:7-2.2(b)8.

(c) Development under this general permit shall comply with N.J.A.C. 7:7-9.22, Beaches; N.J.A.C. 7:7-9.25, Flood hazard areas; N.J.A.C. 7:7-9.26, Riparian zones; N.J.A.C. 7:7-9.27, Wetlands; N.J.A.C. 7:7-9.28, Wetland buffers; and 7:7-9.36, Endangered or threatened wildlife or vegetation species habitats.

(d) Development under this general permit shall comply with N.J.A.C. 7:7-9.16, Dunes, except as provided under (d)1 through 4 below:

1. Development that is located on the landward slope of a secondary or tertiary dune described at (d)1ii below, whichever is most landward, need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the site and the development meet all of the following conditions:

i. The area of the site proposed to be developed is located greater than 500 feet landward of the mean high water line of the adjacent water body;

ii. The cross-sectional area of the primary frontal dune waterward of the proposed development, as measured above the 100-year stillwater elevation and waterward of the primary frontal dune crest, is greater than 1,100 square feet. For the purpose of this subparagraph, primary frontal dune means a continuous or nearly continuous mound or ridge of sand with relatively steep waterward and landward slopes immediately landward of and adjacent to the beach, and subject to erosion and overtopping from high tides and waves during major coastal storms. Secondary and tertiary dunes means the second and third dune mound or ridge, respectively, landward from and adjacent to the primary frontal dune;

iii. The beach area adjacent to the proposed development is either naturally stable without beach nourishment or naturally accretional without beach nourishment, as determined by using the method described at N.J.A.C. 7:7-9.19, Erosion hazard areas, and the information in the Department's Geographical Information System (GIS) database as found in the Historical Shorelines coverage 1836-1986; and

iv. The site disturbance, including grading, excavation and vegetation removal, is limited to that necessary to expand or reconstruct the single family home or duplex and/or accessory structures;

2. Development that is located on a dune which is isolated from a beach and dune system by a paved public road, public seawall, or public bulkhead, existing on July 19, 1993, need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the site and the development meet all of the following criteria:

i. The road, sea wall, or bulkhead is of sufficient size to be designated as the V zone boundary on applicable FEMA flood mapping;

ii. The road, seawall or bulkhead has eliminated the protective function of the isolated dune, by providing a significant barrier to coastal processes, including storm waves and flooding;

iii. The road, seawall or bulkhead is functional and is currently maintained by a public entity;

iv. The area of proposed construction is designated as an A zone, B zone, or C zone on applicable FEMA flood mapping;

v. The site disturbance, including grading, excavation and vegetation removal, is limited to that necessary to expand or reconstruct the single family home or duplex and/or accessory structures; and

vi. The proposed development does not include the construction of a shore protection structure.

3. Development that is located on a dune need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the development meets the following criteria:

i. The single family home or duplex legally existed on July 19, 1993;

ii. The development constructed after July 19, 1993 does not exceed a cumulative surface area of 750 square feet on the dune, excluding the area of reconstruction within the existing footprint of development and the area of development authorized under (d)4 below;

iii. The development is located within the footprint of development of the existing single family home or duplex and/or on the landward side of the existing footprint of development and within the area between lines extended landward and perpendicular to the mean high water line from the widest shore parallel points of the existing footprint of development, except as provided at (d)3iv below;

iv. For every 10 feet the footprint of development of the single family home or duplex is set back landward on the lot from the existing footprint of development of the single family home or duplex, the total area of development may be increased by 200 square feet in addition to that authorized in (d)3ii above, provided the additional square footage is constructed on the non-waterward side of the single family home or duplex;

v. The dune area waterward of the single-family home or duplex is enhanced as follows:

(1) Sand fill shall be placed as necessary to establish a uniform dune crest elevation matching the highest dune crest elevation at the site; and

(2) Native dune vegetation shall be planted as necessary to establish vegetative cover in accordance with the specifications contained in Guidelines and Recommendations for Coastal Dune Restoration and Creation Projects (DEP, 1985) and/or Restoration of Sand Dunes Along the Mid-Atlantic Coast (U.S. Soil Conservation Service, 1992). These documents are available upon request from the Department's Division of Land Use Regulation at the address set forth at N.J.A.C. 7:7-1.6; and

vi. A conservation restriction for the dune areas waterward of the existing and/or approved single-family home or duplex and/or accessory development which complies with N.J.A.C. 7:7-18 is recorded; and

4. Development that is located on a dune and entails the enclosure of an existing deck, patio, or porch need not comply with the dunes rule, N.J.A.C. 7:7-9.16, if the development meets the following criteria:

i. The development is the enclosure of a deck, patio, or porch;

ii. The deck, patio, or porch enclosure is located on the non-waterward side of the single-family home or duplex;

iii. The deck, patio, or porch legally existed on July 19, 1993;

iv. The deck, patio, or porch abuts the dwelling;

v. The enclosure does not extend beyond the limit of the existing deck, patio, or porch as it existed on July 19, 1993;

vi. The footprint of development of the deck, patio, or porch enclosure does not exceed 400 square feet; and

vii. The dune area waterward of the single-family home or duplex is enhanced as follows:

(1) Sand fill shall be placed as necessary to establish a uniform dune crest elevation matching the highest existing dune crest elevation at the site;

(2) Native dune vegetation shall be planted in accordance with the specifications contained in Guidelines and Recommendations for Coastal Dune Restoration and Creation Projects (DEP, 1985) and/or Restoration of Sand Dunes Along the Mid-Atlantic Coast (U.S. Soil Conservation Service, 1992). These documents are available upon request from the Department's Division of Land Use Regulation at the address set forth at N.J.A.C. 7:7-1.6; and

viii. A conservation restriction for the dune areas waterward of the existing and/or approved single family home or duplex and/or accessory development which complies with N.J.A.C. 7:7-18 is recorded.

(e) Development under this general permit shall comply with N.J.A.C. 7:7-9.29, Coastal bluffs, if the site is located on the Atlantic Ocean, Delaware Bay, Raritan Bay, or Sandy Hook Bay. Coastal bluffs are defined at N.J.A.C. 7:7-9.29(a). If the site is not located on one of the four water bodies listed above, the development shall comply with the setback requirements at (l)1 below, unless the development meets either (e)1 or 2 below:

1. The development is located in the "developed bluff area." For the purposes of this paragraph, a "developed bluff area" is an area delineated by the limit of existing buildings, in-ground pool or tennis court that existed on July 19, 1993; or

2. The development on the coastal bluff is located landward of the developed bluff area as defined at (e)1 above, and does not exceed the cumulative surface area of the developed bluff area on the site. If all or part of the proposed development on the coastal bluff is located landward of the existing developed bluff area, an equivalent area of the existing developed bluff area shall be restored through the planting of native woody vegetation species.

(f) Development under this general permit shall comply with N.J.A.C. 7:7-9.18, Coastal high hazard areas, and 7:7-9.19, Erosion hazard areas, except as excluded under (f)1 below;

1. Development under this general permit that is located on a site partially or completely within an erosion hazard area or coastal high hazard area need not comply with the coastal high hazard areas rule, N.J.A.C. 7:7-9.18, and the erosion hazard areas rule, N.J.A.C. 7:7-9.19, if:

i. The lot was shown as a subdivided lot prior to July 19, 1993;

ii. The lot is served by a municipal sewer system; and

iii. A house or commercial building is located within 100 feet of each of the lot lines that run roughly perpendicular to the mean high water line. The 100 feet shall be measured outward from each lot line, along a line generally parallel to the mean high water line.

(g) Public access shall be provided in accordance with the public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(h) The use of plastic under landscaped or gravel areas is prohibited. All sub-gravel liners shall be made of filter cloth or other permeable material.

(i) Any driveway shall be covered with a permeable material or else shall be pitched to drain all runoff onto permeable areas of the site.

(j) For a wooded site, site clearing shall be limited to an area no more than 20 feet from the footprint of the single family home or duplex and the area necessary for driveway, septic, and utility line installations.

(k) For a site adjacent to or including surface water bodies or wetlands, a silt fence with a 10-foot landward return shall be erected at the limit of disturbance along the waterward and wetland sides of the development before construction begins. This fence shall be maintained and remain in place until all construction and landscaping is completed.

(l) Development under this general permit shall comply with the following setbacks:

1. On a site with coastal bluffs that are not located on the Atlantic Ocean, Delaware Bay, Raritan Bay or Sandy Hook Bay, the single family home or duplex and/or accessory structures shall be set back a minimum of 10 feet from the crest of the bluff provided that the development will not result in a loss of stability of the bluff or vegetation on the bluff face. Any structure that requires excavation shall be set back one foot beyond the 10 foot setback for every foot of excavation below existing grade;

2. On an oceanfront site with existing or proposed shore protection structures, the single family home or duplex and/or accessory structures (except decks) shall be set back at least 25 feet from existing or proposed oceanfront shore protection structures. This distance shall be measured from the waterward face of a bulkhead or seawall and from the top of slope on the waterward face of the revetment. This setback shall not apply to other below grade structures; and

3. On a non-oceanfront site with existing or proposed shore protection structures, the single-family home or duplex and/or accessory structures (except decks) shall be set back at least 15 feet from existing or proposed shore protection structures. If the single-family home or duplex and/or accessory structures cannot be located at least 15 feet landward of the shore protection structure, the Department shall reduce the required setback if an engineering certification is submitted demonstrating that, after the proposed development has been constructed, the shore protection structure can be replaced within 18 inches of the existing shore protection structure and a conservation restriction that complies with N.J.A.C. 7:7-18 is recorded for the property which states that any reconstruction of a shore protection structure shall be within 18 inches of the existing shore protection structure. A site with coastal bluffs shall instead comply with (l)1 above.

(m) This general permit does not authorize any activities regulated under the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq.

History

• Renumbered from N.J.A.C. 7:7-7.9 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.6 General permit 6 - construction of a bulkhead and placement of associated fill on a man-made lagoon

(a) This general permit authorizes the construction of a bulkhead on a lot located on a substantially developed manmade lagoon, provided that the bulkhead complies with the following:

1. The site is located on a substantially developed manmade lagoon;

2. The bulkhead shall be located at or above the spring high water line unless it is between two existing legally constructed bulkheads not more than 75 feet apart. In such cases, the connecting bulkhead shall not extend waterward of a straight line connecting the ends of the existing bulkheads;

3. There shall be no disturbance to wetlands during construction;

4. The bulkhead is located inshore of any wetlands;

5. A minimum 10-foot return shall be constructed at each end of the bulkhead unless it is tied into an existing adjacent bulkhead;

6. Clean fill from an upland source or the dredged material removed as part of the bulkhead installation, provided such dredged material meets the criteria for structural or non-structural fill material and is managed in accordance with Appendix G, shall be used for backfill.

7. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

History

• Renumbered from N.J.A.C. 7:7-7.10 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.7 General permit 7 - construction of a revetment at a single-family home or duplex lot

(a) This general permit authorizes the construction of a revetment at a single-family home or duplex lot that is not part of a larger development owned or controlled by the same property owner and which has an eroding shoreline along any shore other than the Atlantic Ocean, Delaware Bay, Raritan Bay, or Sandy Hook Bay. (General permit 8 - construction of gabions at a single-family home is found at N.J.A.C. 7:7-6.8.)

(b) Construction of the revetment shall comply with the following:

1. The revetment slope shall not be steeper than one vertical to two horizontal;

2. The placement of rip rap in the waterway shall be limited to that necessary to protect the shoreline;

3. Fill material placed to achieve the required slope shall be:

i. Added only to the upland;

ii. Free of large stones; and

iii. Firmly compacted before revetment construction begins;

4. Filter fabric (or graded stone filter) shall be installed to prevent loss of slope materials through voids in the revetment material;

5. Revetment stones shall be angular and blocky, not rounded;

6. The toe of the revetment shall be located at least three feet below existing grade to prevent undercutting;

7. Weight of individual stone shall be determined by a design engineer based on wave height range for the site;

8. Placement of a revetment in dunes or wetlands is prohibited. Any wetlands disturbed by the construction activities shall be restored to pre-construction conditions; and

9. The revetment shall be placed in such a way as to not result in instability of a coastal bluff or cause erosion of adjacent properties or offshore areas.

(c) Public access shall be provided in accordance with the public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

History

• Renumbered from N.J.A.C. 7:7-7.11 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.8 General permit 8 - construction of gabions at a single family/duplex lot

(a) This general permit authorizes the construction of gabions at a single-family home or duplex lot that is not part of a larger development owned or controlled by the same property owner and which has an eroding shoreline along any shore other than the Atlantic Ocean, Delaware Bay, Raritan Bay, or Sandy Hook Bay. (General permit 7 - construction of revetments at a single-family home is found at N.J.A.C. 7:7-6.7.)

(b) The design and construction of the gabions shall comply with the following:

1. The gabions shall be laid along the face of the shore such that the waterward slope of the gabions, as measured along the face of the gabions, shall be no steeper than one vertical to two horizontal. However, if the steepness and height of the slope of the non-storm shoreline profile preclude construction of a sloped gabion system, then the waterward slope of a step faced gabion system, as measured along a line connecting the gabions shall be no steeper than one vertical to one horizontal;

2. The placement of the gabions in the waterway shall be limited to that necessary to protect the shore;

3. The toe of the gabions shall be located at least three feet below existing grade to prevent undercutting;

4. Rip rap shall be placed along the waterward toe of the gabion only if the Department determines that such rip-rap is required to limit scour potential and the areas and volume of rip rap are minimized;

5. Placement of gabions on dunes or in wetlands is prohibited. Any wetlands disturbed by the construction activities shall be restored to pre-construction conditions;

6. The gabions shall be placed in such a way as to not result in instability of a coastal bluff or cause erosion of adjacent properties or offshore areas;

7. The gabions shall be tightly packed with four inch to eight inch diameter stone (to minimize movement of the interior stone and consequent damage to the wire) and the edges shall be laced together with steel wire;

8. Individual gabions shall be wired together;

9. The size and number of gabions shall be determined by a design engineer based on wave height range for the site; and

10. Fill material placed to achieve the required slope shall be:

i. Added only to the upland;

ii. Free of large stones; and

iii. Firmly compacted before construction of the gabions begins.

(c) Public access shall be provided in accordance with the public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

History

• Renumbered from N.J.A.C. 7:7-7.12 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.9 General permit 9 - construction of support facilities at legally existing and operating marinas 7:7-6.9 General permit 9 - construction of support facilities at legally existing and operating marinas

(a) This general permit authorizes the construction of support facilities at legally existing and operating commercial marinas including marinas operated by public agencies, commissions, and authorities.

(b) The construction of the following support facilities listed at (b)1 through 6 below is acceptable provided they comply with the specific conditions for each facility and also with (c) below:

1. Construction of boat rack systems/marina support buildings including, but not limited to, showroom, maintenance/repair, marine supplies, bait/tackle, boat sales, dock masters office buildings, sheds, and storage, excluding residential development provided:

i. The building(s) shall be no more than one story or level;

ii. The building(s) shall be set back a minimum of 15 feet from a shore protection structure and 25 feet from the mean high water line where no shore protection structures are present;

iii. The building(s) and rack system shall be set back a minimum of 50 feet from the inland limit of any wetlands;

iv. The building(s) and rack system shall be located in an existing cleared and maintained area of the site;

v. The marina must provide or maintain restrooms and at least one portable toilet emptying receptacle in accordance with N.J.A.C. 7:7-15.3(d); and

vi. Marinas with dockage for 25 or more vessels or any one vessel with live aboard arrangement must provide for adequate and conveniently located pumpout facilities.

2. Construction of restroom facilities provided:

i. Discharge from the facilities shall either be to a municipal or regional treatment plant where practicable, or to a subsurface sewage disposal system designed with capacity to accommodate the new restroom facilities in accordance with N.J.A.C. 7:9A;

ii. The restroom building shall be set back a minimum of 15 feet from a shore protection structure and 25 feet from the mean high water line where no shore protection structures are present; and

iii. The restroom building shall be set back a minimum of 50 feet from the inland limit of any wetlands, unless the Department determines that there is no alternate location.

3. Construction of fences, water lines, and new sewer lines to connect restrooms, pumpout facilities, and/or pumpout support facilities to existing sewer lines provided:

i. The construction has no prudent or feasible alternative alignment which would have less impact to special areas as defined at N.J.A.C. 7:7-9;

ii. The construction shall not result in permanent or long term loss of special areas as defined at N.J.A.C. 7:7-9;

iii. The construction utilizes appropriate measures to mitigate adverse environmental impacts to the maximum extent feasible, such as restoration of disturbed vegetation, habitats, and land and water features; and

iv. For sewer lines only:

(1) The sewer line receives a Treatment Works Approval as required in accordance with the Department's rules at N.J.A.C. 7:7-14A, from the Department's Division of Water Quality;

(2) The sewer line shall not result in adverse secondary impacts; and

(3) The sewer line connects to an existing sewer line located on-site or immediately adjacent to the site.

4. Construction of a gasoline pump(s) and associated pipes and tanks on the upland portion of the marina provided:

i. The marina has available adequate floating containment booms and absorbent materials in the event of hydrocarbon spills;

ii. Fuel pumps include back pressure cutoff valves. Main cut-off valves shall be available both at the dock and in the upland area of the marina; and

iii. All necessary approvals for the construction of underground or above ground storage tanks are obtained.

5. Construction of boat handling facilities including, but not limited to, winches, gantries, railways, platforms and lifts, hoists, cranes, fork lifts, and ramps provided:

i. The boat handling facility (excluding boat ramp and railways) is located landward of the mean high water line; and

ii. The boat handling facility is not located in a wetland area.

6. The one time construction of a single marina support building not exceeding a footprint of 120 square feet provided the building is located on the upland portion of the marina and is not located within wetlands.

(c) The construction of support facilities listed at (b)1 through 6 above shall also comply with the following:

1. The marina complies with N.J.A.C. 7:7-15.3(d), the standards relevant to the construction of marinas;

2. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9;

3. The development is consistent with the Water Quality Management Plan adopted pursuant to N.J.A.C. 7:15; and

4. The development shall meet the requirements of N.J.A.C. 7:7-9.25.

(d) Nothing in this section shall be construed to relieve a marina from compliance with applicable requirements of other State or local agencies.

History

• Renumbered from N.J.A.C. 7:7-7.13 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.10 General permit 10 - reconstruction of a legally existing functioning bulkhead

(a) This permit authorizes the reconstruction of a legally existing functioning bulkhead provided:

1. For project sites which are located on a lagoon lot, the reconstruction of a legally existing bulkhead is located in-place or upland of the existing bulkhead;

2. For project sites which are not located on a lagoon lot:

i. The reconstruction of a legally existing bulkhead is located in-place or upland of the existing bulkhead; or

ii. The reconstruction of a legally existing bulkhead is:

(1) Located within 18 inches outshore of the existing bulkhead (measured from the waterward face of the original bulkhead alignment of the existing bulkhead to the waterward face of the proposed bulkhead) when a timber bulkhead is used; or

(2) Located up to a maximum of 24 inches outshore of the existing bulkhead (measured from the waterward face of the original bulkhead alignment of the existing bulkhead to the waterward face of the proposed bulkhead) when a vinyl bulkhead is used, provided the vinyl bulkhead abuts the pilings of the existing bulkhead; and

3. For all project sites, reconstruction of certain bulkhead structures in place located below the mean high water line may be exempt from the Waterfront Development Law pursuant to N.J.A.C. 7:7-2.4(d)7.

(b) The reconstruction of a legally existing bulkhead as described in (a) above is acceptable provided that:

1. The replacement bulkhead is located upland of any wetlands;

2. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

3. The construction of bulkheads subject to wave run up forces (V zones) shall be designed and certified by a professional engineer to withstand the forces of wave runup;

4. The placement of rip-rap along the seaward toe of the replacement bulkhead structure may qualify for this coastal general permit if the Department determines that such rip rap is required to limit scour potential and the areas and volume of rip rap are minimized;

5. The structure will not create net adverse shoreline movement downdrift, including erosion or shoaling;

6. The construction shall have no adverse impact to any special areas defined at N.J.A.C. 7:7-9; and

7. Clean fill from an upland source or the dredged material removed as part of the bulkhead installation, provided such dredged material meets the criteria for structural or non-structural fill material and is managed in accordance with Appendix G, shall be used for backfill.

History

• Renumbered from N.J.A.C. 7:7-7.14 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.11 General permit 11 - investigation, cleanup, removal, or remediation of hazardous substances

(a) This general permit authorizes all regulated activities landward of the mean high water line that are undertaken, authorized, or otherwise expressly approved in writing by the Department or by a licensed site remediation professional pursuant to the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C, for the investigation, cleanup, removal, or remediation of hazardous substances as defined by or pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., or pollutants, as defined by the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., provided the following conditions are met:

1. If the proposed cleanup activity is to take place in special areas as defined at N.J.A.C. 7:7-9, the general permit authorization shall be issued only if the Department or a licensed site remediation professional finds that there are no practicable alternatives to the investigation, cleanup, removal, and remediation of the hazardous substances or pollutants that would involve less or no disturbance or destruction of special areas as defined at N.J.A.C. 7:7-9;

2. Mitigation may be required in accordance with N.J.A.C. 7:7-17 for disturbance to special areas as defined at N.J.A.C. 7:7-9; and

3. For coastal wetlands, mitigation shall be performed in accordance with N.J.A.C. 7:7-17. The mitigation plan may be incorporated as part of the document by which the Department or a licensed site remediation professional approves the clean-up or it may be submitted as part of the application for authorization under a general permit. The general permit will not be issued until the mitigation plan is submitted and approved by the Division according to the standards at N.J.A.C. 7:7-17.

History

• Renumbered from N.J.A.C. 7:7-7.15 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.12 General permit 12 - landfall of utilities

(a) This general permit authorizes the landfall of utilities including cable (that is electric, television, and fiber optics), telecommunication, petroleum, natural gas, water, and sanitary sewer lines constructed in tidal water bodies authorized pursuant to the Waterfront Development Law or Flood Hazard Area Control Act.

(b) Construction authorized under this general permit is acceptable provided:

1. The section of the utility line that extends landward from the mean high water line of the tidal water body shall be no more than 150 feet long and shall connect to an existing utility line in the adjacent upland;

2. The width of the area disturbed within the right-of-way of the project is no more than 20 feet;

3. Excavated areas for the placement of the utility landfall shall be returned to the pre-existing elevation using the original soil, if feasible or other suitable material to backfill from a depth of 18 inches to the original grade and be revegetated;

4. The utility landfall shall have no adverse impacts to special areas as defined at N.J.A.C. 7:7-9;

5. A silt fence and/or other soil erosion controls shall be installed prior to excavation and shall remain in place until final restoration is complete;

6. The staging area and construction equipment shall not be placed directly into the tidal water. Construction equipment shall be land based or based on barges;

7. All underground cutting agents/lubricants shall be contained and properly disposed. Use of a vacuum truck may be required for large drilling operations;

8. The location of existing facilities prior to excavation shall be performed pursuant to the Underground Facility Protection Act, P.L. 1994, c.118 (N.J.S.A. 48:2-73 et seq.); and

9. The sanitary sewer line is consistent with the Water Quality Management Plan adopted pursuant to N.J.A.C. 7:15.

History

• Renumbered from N.J.A.C. 7:7-7.16 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.13 General permit 13 - construction of recreational facilities at public parks

(a) This general permit authorizes the construction of the following recreational facilities at parks which are publicly owned or controlled for the purposes of public access. Construction of the facilities listed below is acceptable provided that the construction has no adverse impact on any special areas defined at N.J.A.C. 7:7-9 and provided that the facility complies with the specific conditions listed below for each facility.

1. Construction of the following facilities provided they are not located on a dune or in a wetland, except as noted at (a)3 below:

i. Playground equipment including, but not limited to, swings, slides, and jungle gyms;

ii. Picnic tables, benches and grills which are not seasonal;

iii. Gazebos, rain shelters and sheds provided they do not exceed a footprint 200 square feet;

iv. Pathways, bicycle paths and jogging and nature trails and associated fitness equipment provided they are not located on a beach; and

v. Fences which do not require permanent footings.

2. Construction of restroom facilities not located on a beach, dune, or in a wetland, provided that:

i. The restroom facilities connect to an existing sewer line located within or abutting the park, or facilities discharge to a subsurface sewerage disposal system;

ii. The connection at (a)2i above shall be consistent with the Water Quality Management Plan adopted pursuant to N.J.A.C. 7:15;

iii. The restroom building shall be set back a minimum of 100 feet from the mean high water line unless the Department determines that there is no alternate location; and

iv. The restroom building shall be set back a minimum of 50 feet from the inland limit of any wetlands, unless the Department determines there is no alternate location.

3. Trail or boardwalk construction in wetlands is acceptable provided that:

i. The width of the trail or boardwalk does not exceed six feet, except for barrier free trails or boardwalks designed in accordance with the Barrier Free Subcode of the Standard Uniform Construction Code, N.J.A.C. 5:23-7. The construction of restrooms, gazebos, rain shelters, or any covered or enclosed structure is not authorized on the boardwalk or trail;

ii. The height of the structure over wetlands, other than wetlands regulated under the Freshwater Wetlands Protection Act and implementing rules at N.J.A.C. 7:7A, shall be a minimum of four feet regardless of width;

iii. The project does not interfere with the natural hydrology of the area; and

iv. The project does not encroach upon or adversely affect the habitat of any threatened or endangered species.

(b) Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

History

• Renumbered from N.J.A.C. 7:7-7.17 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.14 General permit 14 - bulkhead construction and placement of associated fill at a single-family home or duplex lot

(a) This general permit authorizes the construction of a bulkhead and associated fill at a single-family home or duplex lot on a natural water body provided that the proposed bulkhead complies with the following:

1. Legally existing functional bulkheads are located on the lots adjacent to the proposed bulkhead and are no more than 75 feet apart;

2. The bulkhead shall be located at or above the spring high water line;

3. The bulkhead is located a minimum of five feet inshore of any wetlands;

4. The bulkhead shall not be located on a dune or oceanfront beach;

5. Clean fill from an upland source or the dredged material removed as part of the bulkhead installation, provided such dredged material meets the criteria for structural or non-structural fill material and is managed in accordance with Appendix G, shall be used for backfill;

6. The bulkhead shall not be located further waterward than the bulkheads on the adjacent properties;

7. In the event that the bulkhead will be located landward of the adjacent bulkheads, the new bulkhead shall connect to the bulkhead on either side;

8. The construction of bulkheads subject to wave run-up forces (V zones) shall be designed and certified by a professional engineer to withstand the forces of wave run-up;

9. The placement of rip-rap along the seaward toe of the bulkhead structure may qualify for this coastal general permit if the Department determines that such rip rap is required to limit scour potential and the areas and volume of rip rap are minimized;

10. There shall be no disturbance to wetlands during construction; and

11. Public access shall be provided in accordance with the public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(b) This general permit is not available for activities subject to the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq.

History

• Renumbered from N.J.A.C. 7:7-7.18 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.15 General permit 15 - construction of piers, docks, including jet ski ramps, pilings, and boatlifts in man-made lagoons

(a) This general permit authorizes the construction of piers, docks, including jet ski ramps, pilings, and boatlifts in man-made lagoons, provided that:

1. The structures shall be located on individual single-family or duplex lots and shall be for recreational or noncommercial use;

2. The structures, including mooring area and mooring piles, shall not extend beyond a distance of 20 percent of the width of a man-made lagoon;

3. The width of the dock or pier shall not exceed twice the clearance between the structure and the surface of the ground below or the water surface at mean high water, except for floating docks. For example, an eight foot wide dock must be elevated a minimum of four feet above the water surface at mean high water;

4. The maximum width of the structure shall be eight feet, except where crossing wetlands, where the proposed structure shall be constructed perpendicular to the shoreline to access sufficient water depth and shall not exceed six feet in width. In any case, the height of the structure over wetlands shall be a minimum of four feet;

5. Any wetlands disturbed during construction shall be restored to pre-project conditions;

6. The proposed structure, including mooring areas and mooring piles, does not hinder navigation or access to adjacent docks, piers, moorings or water areas;

7. A minimum of eight feet of open water shall be provided between any docks including jet ski ramps, if the combined width of any existing or proposed docks over the water exceeds eight feet;

8. For docks which are perpendicular to the adjacent bulkhead or shoreline, construction and placement of the dock shall be a minimum of four feet from all property lines;

9. Space between horizontal planking is maximized and width of horizontal planking is minimized to the maximum extent practicable. Under normal circumstances, a minimum of 3/8 inch, 1/2 inch, 3/4 inch, or one inch space is to be provided for four inch, six inch, eight to 10 inch, or 12 inch plus wide planks, respectively. An alternative dock design which allows for sunlight penetration equal to or greater than that allowed by the spacing of planking described in this paragraph is also acceptable. Alternative designs include, for example, grate decking that is constructed of metal, wood, aluminum, or other similar materials that allow sunlight penetration through the grates within the dock or pier;

10. Jet ski ramps are inclined floating docks which are typically attached to existing docks for the purpose of docking jet skis. Jet ski ramps shall not exceed eight feet in width; and

11. For sites which have existing dock structures exceeding eight feet in width over water areas and/or wetlands, which were constructed prior to September 1978 and for which the applicant proposes to increase the coverage over the water area or wetland by increasing the number or size of boat slips, docks or piers, the existing oversized structures shall be reduced to a maximum of eight feet in width.

History

• Renumbered from N.J.A.C. 7:7-7.19 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.16 General permit 16 - minor maintenance dredging in man-made lagoons

(a) This general permit authorizes minor maintenance dredging in man-made lagoons provided that:

1. The volume of the material to be dredged shall not exceed 100 cubic yards;

2. The proposed depth shall not exceed six feet below mean low water;

3. Dredged material shall be placed on an upland site and shall be stabilized;

4. The proposed slope from the waterward edge of any wetlands to the nearest edge of the dredged area shall not exceed three horizontal to one vertical; and

5. The proposed depth does not exceed the water depth outshore of the dredged area.

History

• Renumbered from N.J.A.C. 7:7-7.20 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.17 General permit 17 - stabilization of eroded shorelines

(a) This general permit authorizes the stabilization of eroded shorelines along tidal waterways, excluding the Atlantic Ocean, provided that the proposed method complies with all of the following:

1. The stabilization materials are limited to live branch cuttings, live facings, live stakes, vegetative cuttings, vegetated earth buttresses, coir fiber products, fiber plugs, plants and clusters, selected plant materials, fiber pallets, fiber carpet, and wood stake anchor systems. Materials shall be installed in accordance with the construction guidelines of Chapter 16--"Streambank and Shoreline Stabilization Protection," of the National Engineering Handbook (NEH), Part 650, 1996, published by the United States Department of Agriculture, incorporated herein by reference, as amended and supplemented. This coastal general permit does not authorize the use of geotubes, stone, concrete, gabions, wood sheathing, pvc pipe, used tires, discarded Christmas trees, or other material not specifically stated in this paragraph;

2. The stabilization of the eroded shoreline shall have no adverse impact on special areas defined at N.J.A.C. 7:7-9;

3. No disturbance to wetlands shall occur;

4. Where shoreline stabilization will occur outshore of a wetland, the construction shall result in minimum feasible alteration or impairment of natural tidal circulation;

5. Where shoreline stabilization will occur outshore of a wetlands, the construction shall result in minimum feasible alteration or impairment of the natural contour or the natural vegetation of the wetlands;

6. For sites where grading is required, no grading shall occur below the spring high water line, and all soil or other graded materials shall be pulled back away from the water. Grading by pushing soil or other material below the spring high water line is prohibited;

7. The placement of bioengineering materials, with the exception of plantings, shall be limited to that necessary to protect the shoreline;

8. Plant material shall be chosen and installed in accordance with "Vegetation For Tidal Shoreline Stabilization In the Mid-Atlantic States" in Chapter 16--"Streambank and Shoreline Stabilization Protection," of the National Engineering Handbook (NEH), Part 650, 1996, published by the United States Department of Agriculture, incorporated herein by reference, as amended and supplemented.

9. For projects on public lands, public access to the waterfront shall be provided and maintained during construction, and thereafter; and

10. If the Department determines that construction has resulted in adverse shoreline sand movement, including erosion or shoaling, the Department may require the permittee to remove the shoreline stabilization materials.

History

• Renumbered from N.J.A.C. 7:7-7.21 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.18 General permit 18 - avian nesting structures

(a) This general permit authorizes the construction of pile supported avian nesting structures provided:

1. The construction shall not alter or impair the natural contour or vegetation of the wetlands. Protective measures such as wide track vehicles and mats shall be utilized during construction;

2. Disturbance to wetlands is restored except for those permanently impacted by the pilings; and

3. The construction of the pile supported nesting structure shall not adversely impact special areas as defined at N.J.A.C. 7:7-9.

History

• Renumbered from N.J.A.C. 7:7-7.22 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.19 General permit 19 - modification of existing electrical substations

(a) This general permit authorizes the modification of existing electrical substations within the existing fence line to maintain substation and electrical load and system reliability provided that:

1. The activities occur within the cleared, maintained portions of the site within the existing fenced area; and

2. The activities shall not have an adverse impact on special areas as defined at N.J.A.C. 7:7-9.

History

• Renumbered from N.J.A.C. 7:7-7.23 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.20 General permit 20 - legalization of the filling of tidelands

(a) This general permit authorizes the legalization of the filling of any lands formerly flowed by the tide provided:

1. The filling occurred after 1914;

2. The fill appears on the applicable Tidelands Map; and

3. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9;

(b) The legalization of the filling of any lands formerly flowed by the tide associated with a single-family home that is not part of a larger development, is eligible for a permit-by-rule. See N.J.A.C. 7:7-4.9.

History

• Renumbered from N.J.A.C. 7:7-7.24 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.21 General permit 21 - construction of telecommunication towers

(a) This general permit authorizes the construction of telecommunication towers such as cellular telephone and radio towers, including access roads and associated support buildings located upland of the mean high water line, provided:

1. The development shall not be located in or on dunes, beaches, wetlands, bay islands, coastal bluffs or wild and scenic river corridors;

2. The limits of disturbance associated with the development shall not exceed 0.25 acres;

3. The development shall be located a minimum of 50 feet landward of the mean high water line except on sites defined as filled water's edge sites at N.J.A.C. 7:7-9.23 where the development shall instead be located a minimum of 100 feet landward of the mean high water line;

4. The development shall be setback a minimum of 50 feet from the inland limit of any wetlands; and

5. The development shall comply with the endangered or threatened wildlife or vegetation species habitats rule, N.J.A.C. 7:7-9.36, and the critical wildlife habitat rule, N.J.A.C. 7:7-9.37.

History

• Renumbered from N.J.A.C. 7:7-7.25 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.22 General permit 22 - construction of certain structures related to the tourism industry at hotels and motels, commercial developments, and multi-family residential developments over 75 units

(a) This general permit authorizes the construction of structures such as equipment storage containers and sheds, stage platforms, bleachers, portable restrooms, food concession stands, gazebos, lockers, canopied shelters, and wooden walkways, related to the tourism industry, at hotels and motels, commercial developments, and multi-family residential developments over 75 units provided that:

1. Except as provided in (a)1i below, the structure remains in place only from May 1 through October 31;

i. Underground utilities, floor decking, open drink and food concession stand shells, and stage shells may remain in place on a year-round basis;

2. All structures authorized by this general permit that are located on a beach, except underground utilities, shall be immediately removed from the beach and relocated to a secure place at any time that the National Weather Service issues a Severe Weather Alert for the municipality in which the development is located, for significant weather events, such as Coastal Flood Warning, Extreme Wind Warning, Hurricane Warning, Tornado Warning or Tropical Storm Warning, that would directly affect structures left on the beach, until the Severe Weather Alert is lifted.

3. The structure is not located on a dune, coastal bluff, or in a wetland;

4. Placement of the structure does not include the excavation, grading or filling of a beach;

5. The structure shall have no adverse impact on special areas defined at N.J.A.C. 7:7-9;

6. The structure is located a minimum of 50 feet landward of the mean high water line, except on beaches where the development is located on the most landward portion of the beach. Development on beaches shall additionally be subject to the following:

i. The development shall occupy a maximum of 33 percent of the total width of the beach berm area within the limits of the project and is limited to the most landward one-third of the useable beach berm area; and

ii. The total area of beach coverage, including all structures and support facilities, shall not exceed one acre. However, the Department reserves the right to limit the coverage to a greater extent due to prevailing beach conditions, public access and safety concerns;

7. The structure is located a minimum of 50 feet from any wetlands;

8. If the structure is proposed on a beach, the structure does not unreasonably conflict with ocean views or other beach uses;

9. If the structure is proposed on a beach, the beach is open to the public;

10. Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9; and

11. Where the structure(s) is located on a beach, for each year of the duration of the permit, the permittee shall submit on or before April 1st to the Department for its review and approval one copy of a revised site plan, dated no more than 30 days prior to the submittal, including supplemental documents as appropriate, showing:

i. The location of the beach berm area; and

ii. Compliance with (a)2 through 9 above. Based on review of this information, the Department may approve the structure(s) as proposed or require modifications to the footprint or design of the structures to comply with these standards.

(b) Seasonal and temporary structures related to the tourism industry at public developments are not regulated as public development under CAFRA pursuant to N.J.A.C. 7:7-1.5 and 2.2(b)2viii.

History

• Renumbered from N.J.A.C. 7:7-7.26 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.23 General permit 23 - geotechnical survey borings

(a) This general permit authorizes geotechnical survey borings including survey borings or excavations constructed for the purpose of obtaining information on subsurface conditions, for the purpose of determining the presence or extent of contamination in subsurface soils or groundwater, and for obtaining seismic information, provided the following conditions are met.

1. Borings and related site disturbance shall not be located in shellfish habitat (N.J.A.C. 7:7-9.2), submerged vegetation habitat (N.J.A.C. 7:7-9.6) or endangered or threatened wildlife or plant species habitats (N.J.A.C. 7:7-9.36).

2. Borings and related site disturbance shall comply with wild and scenic river corridors, (N.J.A.C. 7:7-9.44), wetlands (N.J.A.C. 7:7-9.27), and wetlands buffers (N.J.A.C. 7:7-9.28).

3. Borings for remedial investigation shall be permitted, constructed, and completed in accordance with the Well Construction and Maintenance; Sealing of Abandoned Well rules, N.J.A.C. 7:9D, and N.J.A.C. 7:26E-1.5(b) and 4 of the Technical Requirements for Site Remediation;

i. Any excavation shall not adversely impact existing remedial investigation/remediation action (RI/RA) activities:

ii. Workers on-site shall be notified, in writing, prior to the start of site preparation, of the possible presence of contaminated materials. Appropriate measures shall be taken to protect workers from exposure to possible contaminants; and

iii. Any potential or actual impact to existing monitoring wells shall be reported to the Department's Site Remediation Program and the licensed site remediation professional (LSRP) of record assigned to the case, if applicable. The LSRP (or the Site Remediation Program if there is no LSRP involved in the case) will coordinate appropriate measures required to protect, decommission, or install the monitoring wells. The LSRP is responsible for ensuring that all damaged or destroyed wells are decommissioned in accordance with N.J.A.C. 7:9D. Any replacement wells shall be installed in accordance with N.J.A.C. 7:9D. Decommissioning of monitoring wells and drilling of regulated soil borings shall be performed by a New Jersey licensed well driller of the proper class in accordance with N.J.A.C. 7:9D.

4. Disturbance shall be limited to that which is necessary to access and conduct the geotechnical borings.

i. Disturbance to vegetation shall be limited to a maximum width of five feet for access.

5. Borings and related site disturbance shall not be conducted during the following time periods:

i. During the migration of anadromous fish from April 1 thru June 30 (inclusive);

ii. During the period from March 1 thru June 30 and from October 1 thru November 30 (inclusive), within and adjacent to waters on the Delaware River System from the mouth of bay to Delaware Memorial Bridge and tidal Maurice River, identified as American shad migratory pathways; and

iii. During the period from April 1 thru June 30 and from September 1 thru November 30 (inclusive), within and adjacent to waters on the Delaware River System from the Delaware Memorial Bridge to the New York State line and tidal portions of Rancocas and Raccoon Creeks, identified as American shad migratory pathways.

6. Bore holes shall be backfilled to the original surface level with appropriate, non-contaminated, soil material.

i. Sand may not be used for backfilling in either freshwater or coastal wetlands. Restoration of all bore holes must maintain the hydrologic integrity of the wetlands. To avoid the potential for draining a wetland by puncturing a hard-pan or confining layer, all borings must be sealed with grout or bentonite in accordance with the Department's Water Monitoring Management Program rules, N.J.A.C. 7:9-6.

ii. Water used to flush a boring may be discharged to the ground provided the boring is not conducted in proximity to a stream or in an area of hazardous waste or acid-producing soils. When the boring is performed in proximity to a stream, and water or drilling fluid is used to remove soil from the hole, the sediment-laden water shall not be allowed to flow overland such that it would enter the stream. Soil erosion and sediment control measures shall be used as necessary to contain/filter excess water. Drilling fluid shall be contained when working adjacent to a fish-populated watercourse during the relevant restricted period, and in any other situation where containment represents the only method of ensuring that there is no impact to adjacent streams.

7. Bore holes shall be backfilled to the original surface level with appropriate, non-contaminated, soil material.

i. Sand may not be used for backfilling in either freshwater or coastal wetlands. Restoration of all bore holes must maintain the hydrologic integrity of the wetlands. To avoid the potential for draining a wetland by puncturing a hard-pan or confining layer, all borings must be sealed with grout or bentonite in accordance with the Department's Water Monitoring Management Program rules, N.J.A.C. 7:9-6.

ii. Water used to flush a boring may be discharged to the ground provided the boring is not conducted in proximity to a stream or in an area of hazardous waste or acid-producing soils. When the boring is performed in proximity to a stream, and water or drilling fluid is used to remove soil from the hole, the sediment-laden water shall not be allowed to flow overland such that it would enter the stream. Soil erosion and sediment control measures shall be used as necessary to contain/filter excess water. Drilling fluid shall be contained when working adjacent to a fish-populated watercourse during the relevant restricted period, and in any other situation where containment represents the only method of ensuring that there is no impact to adjacent streams.

History

• Renumbered from N.J.A.C. 7:7-7.27 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code § 7:7-6.24 General permit 24 - habitat creation, restoration, enhancement, and living shoreline activities

(a) This general permit authorizes habitat creation, restoration, enhancement, and living shoreline activities necessary to implement a plan for the restoration, creation, enhancement, or protection of the habitat, water quality functions, and values of wetlands, wetland buffers, and open water areas, which is sponsored by a Federal or State agency or other entity described in (b) below. For the purposes of this general permit, a "sponsor" shall endorse the activities in writing.

(b) The following habitat creation, restoration, enhancement, and living shoreline plans are acceptable provided they demonstrate compliance with (c) through (g) below:

1. A fish and/or wildlife management plan created or approved by the Department's Division of Fish and Wildlife;

2. A project plan approved under the Partners for Fish and Wildlife program, Coastal Program, or a similar program administered by the USFWS;

3. A project plan created by the U.S. Department of Agriculture's Natural Resources Conservation Service under the Wetlands Reserve program, the Conservation Reserve program, the Conservation Reserve Enhancement program, the Wildlife Habitat Incentive program (WHIP), or a similar program, and approved by the local Soil Conservation District;

4. A plan approved by the Department's Office of Natural Resource Damages for the restoration, creation or enhancement of natural resources injured as the result of an oil spill or release of a hazardous substance;

5. A mitigation project required or approved by a government agency, such as the USACE;

6. A habitat creation, restoration, or enhancement plan carried out by one of the Federal or State agencies at (b)1 through 5 above or by a government resource protection agency such as a parks commission;

7. A habitat creation, restoration, or enhancement plan carried out by a charitable conservancy provided that the plan is part of a program listed at (b)2 through 5 above;

8. A living shoreline plan designed and/or sponsored by the Department, the USFWS, the Natural Resource Conservation Services, the USACE, the USEPA, or NOAA's Restoration Center; or

9. A living shoreline plan implemented by a college or university for the purpose of research.

(c) Habitat creation, restoration, enhancement, and living shoreline activities that are authorized by this general permit include, but are not limited to, the following:

1. Altering hydrology to restore or create wetlands conditions, such as by blocking, removing, or disabling a human-made drainage ditch or other drainage structure such as a tile, culvert or pipe;

2. Breaching a structure such as a dike or berm in order to allow water into an area;

3. Placing habitat improvement structures such as:

i. Nesting islands;

ii. Fencing to contain, or to prevent intrusion by, livestock or other animals; and

iii. Fish habitat enhancement devices or fish habitat improvement structures such as placed boulders, stream deflectors, or brush piles;

4. Regrading to provide proper elevation or topography for wetlands restoration, creation, or enhancement;

5. Cutting, burning, or otherwise managing vegetation in order to increase habitat diversity or control nuisance flora; or

6. Establishing a living shoreline to protect, restore, or enhance a habitat.

(d) To be eligible for authorization under this general permit, an applicant shall demonstrate that the proposed project:

1. Is part of a plan for the restoration, creation, or enhancement of the habitat and water quality functions and values of wetlands, wetland buffers, and/or State open waters;

2. Is consistent with the requirements of the Wetlands Act of 1970, the Waterfront Development Law, the Coastal Area Facility Review Act and this chapter;

3. Will improve or maintain the values and functions of the ecosystem; and

4. Will have a reasonable likelihood of success, or, if performed by a college or university, in accordance with (b)9 above, will advance the level of knowledge regarding living shorelines in the State.

(e) Activities under this general permit, except for living shoreline activities, which are subject to the requirements of (f) below, shall comply with the following:

1. If the proposed habitat creation, restoration, or enhancement activity is to take place in special areas, as defined at N.J.A.C. 7:7-9, the general permit authorization shall be issued only if the Department finds that there are no practicable alternatives that would involve less or no disturbance or destruction of special areas;

2. The activities shall disturb the minimum amount of special areas as defined at N.J.A.C. 7:7-9 necessary to successfully implement the project plan;

3. The activities shall not decrease the total combined area of special areas on a site. However, the Department may approve a decrease if the Department determines that the activities causing the decrease are sufficiently environmentally beneficial to outweigh the negative environmental effects of the decrease. In addition, the Department may approve conversion of one special area to another special area if the Department determines that such conversion is environmentally beneficial; and

4. If the activities involve the removal of a dam, the activities shall be conducted in accordance with a permit issued pursuant to N.J.A.C. 7:20 by the Department's Dam Safety Section in the Division of Engineering and Construction.

(f) Living shoreline activities shall comply with the following:

1. The project area below the mean high water line is one acre in size or less, unless the applicant is a county, State, or Federal agency that demonstrates that a larger project size is necessary to satisfy the goals of the project;

2. The project shall disturb the minimum amount of special areas as defined at N.J.A.C. 7:7-9, necessary to successfully implement the project plan. The Department may approve a reduction in the size of a particular special area in order to allow an increase in a different special area if the Department determines that the activities causing the reduction are sufficiently environmentally beneficial to outweigh the negative environmental effects of the reduction; and

3. Where the living shoreline is intended to restore an existing shoreline to a previous location, the living shoreline, including all associated fill, shall not exceed the footprint of the shoreline as it appeared on the applicable Tidelands Map, except for a structural component of the project intended to reduce wave energy.

(g) Public access shall be provided in accordance with the lands and waters subject to public trust rights rule, N.J.A.C. 7:7-9.48, and the public access rule, N.J.A.C. 7:7-16.9.

(h) This general permit does not authorize an activity unless the sole purpose of the activity is habitat creation, restoration, enhancement, or a living shoreline. For example, this general permit does not authorize construction of a detention basin in wetlands for stormwater management, even if the detention basin or the project of which the basin is a part will also result in habitat creation or enhancement.

History

• Renumbered from N.J.A.C. 7:7-7.29 by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code Tit. 7, ch. 7C RESERVED

History

• AUTHORITY: This Chapter originally contained procedural rules for hearings held pursuant to the Coastal Area Facilities Review Act which were adopted pursuant to authority delegated at N.J.S.A. 13:19 et seq. and were filed and became effective February 1, 1974, as R.1974 d.26. See: 6 New Jersey Register 101(b) Additional amendments were filed and became effective February 8, 1974, as R.1974 d.32. See: 6 New Jersey Register 101(c). The repeal of the entire text of this Chapter was filed and became effective June 24, 1974, as R.1974 d.162. See: 6 New Jersey Register 263(c).

N.J. Admin. Code Tit. 7, ch. 7D RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Formerly, this chapter contained rules and appeal procedures of the Coastal Area Review Board, which were adopted pursuant to N.J.S.A. 13:19-1 et seq. Subchapter 1 (Appeals Procedures) was filed and became eff. 11/18/1975 as R.1975 d.345. See: New Jersey Register 551(a). Subsequently, the text was amended on February 24, 1976 by R.1976 d.60. See: 8 New Jersey Register 178(a). Subchapter 2 (CAFRA Rules and Regulations) was filed and became eff. 4/5/1977 as R.1977 d.121. See: 8 New Jersey Register 176(a), 9 New Jersey Register 218(a). Amendments to the text became eff. 4/5/1979 as R.1979 d.99 and on July 9, 1981 as R.1981 d.267. See: 10 New Jersey Register 474(b), 11 New Jersey Register 173(a); 13 New Jersey Register(a), 13 New Jersey Register 401(b). On March 12, 1984 the subchapter expired pursuant to Executive Order 66(1978). Subsequently, on May 7, 1984, subchapter one was repealed by R.1984 d.164. Rules concerning the Coastal Permit Program are now found at N.J.A.C. 7:7. See: 15 New Jersey Register 2090(a), 16 New Jersey Register 1073(a).

N.J. Admin. Code Tit. 7, ch. 7E RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 7E, Coastal Zone Management, was adopted as R.1978 d.292, effective 9/28/1978. See: 10 N.J.R. 184(a), 10 N.J.R. 384(a).
• Public Notice: Federal ruling on N.J.A.C. 7:7E. See: 14 N.J.R. 1467(b).
• Pursuant to Executive Order No. 66(1978), Chapter 7E, Coastal Zone Management, was readopted as R.1985 d.422, effective 7/24/1985. See: 17 N.J.R. 1465(a), 17 N.J.R. 1797(c), 17 N.J.R. 2021(a).
• Pursuant to Executive Order No. 66(1978), Chapter 7E, Coastal Zone Management, was readopted as R.1990 d.413, effective 7/24/1990. See: 22 N.J.R. 1188(a), 22 N.J.R. 2542(b).
• Public Notice: Notice of Routine Program Implementation. See: 25 N.J.R. 1010(a).
• Subchapter 3A, Standards for Beach and Dune Activities, Subchapter 3B, Information Required in Wetland Mitigation Proposals, and Subchapter 3C, Assessing Impacts to Endangered and Threatened Wildlife Species in Environmental Impact Assessments, were adopted as New Rules by R.1994 d.380, effective 7/18/1994 (operative July 19, 1994). See: 26 N.J.R. 943(a), 26 N.J.R. 1561(a), 26 N.J.R. 2990(a).
• Appendix to Chapter 7E: Figures 1 through 16 were adopted as a part of R.1994 d.380 and form the Appendix to N.J.A.C. 7:7E. The Figures are not reproduced in this chapter, but can be reviewed by contacting the Office of Administrative Law, Rules and Publications, PO Box 301, Trenton, NJ 08625-0301, or the Department of Environmental Protection.
• Pursuant to Executive Order No. 66(1978), Chapter 7E, Coastal Zone Management, was readopted as R.1995 d.405, effective 6/23/1995. See: 27 N.J.R. 417(a), 27 N.J.R. 2738(a).
• Notice of Routine Program Change. See: 30 N.J.R. 2087(a), 30 N.J.R. 2780(b), 30 N.J.R. 4284(a).
• Subchapter 5A, Impervious Cover Limits and Vegetative Cover Percentages in the Upland Waterfront Development Area; Subchapter 5B, Impervious Cover Limits and Vegetative Cover Percentages in the CAFRA Area, were adopted as R.2000 d.45, effective 2/7/2000. See: 31 N.J.R. 2042(a), 32 N.J.R. 503(a).
• The expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from June 23, 2000 to March 31, 2001. See: 32 N.J.R. 2591(c).
• The expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from March 31, 2001 to March 31, 2002. See: 33 N.J.R. 1370(a).
• The expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from September 27, 2002 to January 7, 2003. See: 34 N.J.R. 3641(a).
• Chapter 7E, Coastal Zone Management, was readopted as R.2003 d.60, effective 1/7/2003. As part of R.2003 d.60, Subchapter 2, Location, Use and Resource Rules, was repealed. See: 34 N.J.R. 74(a), 35 N.J.R. 632(a).
• Public Notice: Routine Program Change for Coastal Management Program. See: 35 N.J.R. 4917(a).
• Public Notice: Routine Program Change for Coastal Management Program. See: 36 N.J.R. 3304(b).
• Public Notice: Coastal Management Office: determination on routine program change to the Coastal Management Program. See: 38 N.J.R. 1587(a).
• Subchapter 8A, Information Required to Demonstrate Compliance with the Public Trust Rights Rule, N.J.A.C. 7:7E-8.11; Conservation Restrictions and Public Access Instruments, was adopted as new rules by R.2007 d.374, effective 12/17/2007. See: 38 N.J.R. 4570(a), 39 N.J.R. 5222(a).
• Public Notice: Coastal Management Office: notice of routine program change to the Coastal Management Program. See: 41 N.J.R. 1272(b).
• In accordance with N.J.S.A. 52:14B-5.1d, the expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from January 7, 2008 to July 7, 2009. See: 40 N.J.R. 781(b).
• In accordance with N.J.S.A. 52:14B-5.1d, the expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from July 7, 2009 to July 7, 2010. See: 41 N.J.R. 2894(a).
• In accordance with N.J.S.A. 52:14B-5.1d, the expiration date of Chapter 7E, Coastal Zone Management, was extended by gubernatorial directive from July 7, 2010 to July 7, 2011. See: 42 N.J.R. 468(a).
• Public Notice: Plan Endorsement. See: 42 N.J.R. 523(a).
• Petition for Rulemaking. See: 42 N.J.R. 2277(a), 2332(a), 2992(a), 2992(b).
• Public Notice: Routine Program Changes for Coastal Management Program. See: 42 N.J.R. 2638(a).
• Petition for Rulemaking. See: 43 N.J.R. 451(a).
• Public Notice: Determination on Routine Program Changes for Coastal Management Program. See: 43 N.J.R. 681(a).
• Subchapter 8A, Information Required to Demonstrate Compliance with the Public Trust Rights Rule, N.J.A.C. 7:7E-8.11; Conservation Restrictions and Public Access Instruments, was repealed by R.2012 d.182, effective 11/5/2012. See: 43 N.J.R. 772(a), 44 N.J.R. 614(a), 44 N.J.R. 2559(a).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 7E, Coastal Zone Management, was scheduled to expire on 7/7/2013. See: 43 N.J.R. 1203(a).
• Chapter 7E, Coastal Zone Management, was readopted, effective 5/29/2013. See: 45 N.J.R. 1651(a).
• Public Notice: Routine Program Change for Coastal Management Program. See: 45 N.J.R. 2613(b).
• Public Notice: Determination on Routine Program Change for Coastal Management Program. See: 46 N.J.R. 558(b).
• Subchapter 1, Introduction, was recodified to N.J.A.C. 7:7-1; Subchapter 3, Special Areas, was recodified to N.J.A.C. 7:7-9; Subchapter 3A, Standards for Beach and Dune Activities, was recodified to N.J.A.C. 7:7-10; Subchapter 3B, Information Required in Tidal Wetland and Intertidal and Subtidal Shallows Mitigation Proposals, was repealed; Subchapter 3C, Standards for Conducting and Reporting the Results of an Endangered or Threatened Wildlife or Plant Species Habitat Impact Assessment and/or Endangered or Threatened Wildlife Species Habitat Evaluation, was recodified to N.J.A.C. 7:7-11; Subchapter 4, General Water Areas, was recodified to N.J.A.C. 7:7-12; Subchapter 5, Requirements for Impervious Cover and Vegetative Cover for General Land Areas and Certain Special Areas, Subchapter 5A, Impervious Cover Limits and Vegetative Cover Percentages in the Upland Waterfront Development Area, and Subchapter 5B, Impervious Cover Limits and Vegetative Cover Percentages in the CAFRA Area, were recodified to N.J.A.C. 7:7-13; Subchapter 6, General Location Rules, was recodified to N.J.A.C. 7:7-14; Subchapter 7, Use Rules, was recodified to N.J.A.C. 7:7-15; Subchapter 8, Resource Rules, was recodified to N.J.A.C. 7:7-16; Appendix 1, Design Standards and Specifications, was repealed; Appendix 3, Boundaries of Non-Mainland Coastal Centers in the CAFRA Area, was recodified to N.J.A.C. 7:7 Appendix H; and Appendix 5, CAFRA Centers, was recodified to N.J.A.C. 7:7 Appendix I, effective 7/6/2015. See: 46 N.J.R. 1051(a), 47 N.J.R. 1392(a).

N.J. Admin. Code Tit. 7, ch. 7F RESERVED

History

• CHAPTER HISTORICAL NOTE:
• All provisions of this chapter became effective 12/6/1982 as R.1982 d.421. See: 14 New Jersey Register 865(b), 14 New Jersey Register 1365(b).
• 1985 Revisions: Amendments became effective 4/15/1985 as R.1985 d.184. See: 16 New Jersey Register 2881(a), 17 New Jersey Register 906(a).
• 1988 Revisions: This chapter was readopted pursuant to Executive Order No. 66(1978), effective 1/19/1988 as R.1988 d.43. See: 19 New Jersey Register 2091(a), 20 New Jersey Register 186(a).
• Pursuant to Executive Order No. 66(1978), Chapter 7F expired on 1/19/1993.

N.J. Admin. Code Tit. 7, ch. 9 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 9, Water Pollution Control Rules, was adopted and became effective prior to 9/1/1969.
• Subchapter 10, Installation of Sewerage Facilities in Critical Areas, was adopted as new rules by R.1971 d.208, effective 1/15/1972. See: 3 New Jersey Register 78(a), 3 New Jersey Register 255(b).
• Subchapter 9, Sealing of Abandoned Wells, was adopted as new rules by R.1973 d.299, effective 10/23/1973. See: 5 New Jersey Register 185(b), 5 New Jersey Register 370(b).
• Subchapter 11, Allocation of Waste Lands or Point-Source Dischargers, was adopted as new rules by R.1974 d.151, effective 6/18/1974. See: 6 New Jersey Register 132(c), 6 New Jersey Register 263(b).
• Subchapter 4, Surface Water Quality Standards, was adopted as new rules by R.1974 d.310, effective 12/2/1974. See: 6 New Jersey Register 302(d), 6 New Jersey Register 470(c).
• Subchapter 13, Sewer Extension Ban, was adopted as new rules by R.1975 d.302, effective 10/16/1975. See: 7 New Jersey Register 147(a), 7 New Jersey Register 499(e).
• Subchapter 14, Ground Water Quality Standards, was originally adopted by R.1978 d.20, effective 1/23/1978. See: 9 New Jersey Register 68(b), 10 New Jersey Register 61(a).
• Subchapter 15, Grants for Restoring Publicly Owned Freshwater Lakes, was adopted as new rules by R.1980 d.374, effective 8/22/1980. See: 12 New Jersey Register 310(a), 12 New Jersey Register 575(c).
• Subchapter 3, Location of Factory within Watershed, was repealed by R.1980 d.433, effective 10/7/1980. See: 12 New Jersey Register 454(b), 12 New Jersey Register 643(a).
• Subchapter 4, Surface Water Quality Standards, Subchapter 5, Subchapter 8, Treatment of Wastewaters Discharged into Waters of the State, Subchapter 11, Allocation of Waste Loads or Point-Source Dischargers, and Subchapter 14, Ground Water Quality Standards, were repealed by R.1981 d.80, effective 3/4/1981. See: 12 New Jersey Register 108(c), 13 New Jersey Register 194(b).
• Pursuant to Executive Order No. 66(1978), Subchapter 2, Standards for Construction of Individual Subsurface Sewage Disposal Systems, was readopted as R.1983 d.243, effective 6/3/1983. See: 15 New Jersey Register 591(a), 15 New Jersey Register 1042(a).
• Subchapter 10, Installation of Sewerage Facilities in Critical Areas, was repealed by R.1983 d.423, effective 10/3/1983. See: 15 New Jersey Register 1155(a), 15 New Jersey Register 1654(b).
• Pursuant to Executive Order No. 66(1978), Subchapter 13, Sewer Extension Ban, was readopted as R.1984 d.336, effective 7/23/1984. See: 16 New Jersey Register 660(a), 16 New Jersey Register 2096(a).
• Pursuant to Executive Order No. 66(1978), Subchapter 15, Grants for Restoring Publicly Owned Freshwater Lakes, expired on 8/22/1985
• Subchapter 15, Grants Restoring Publicly Owned Freshwater Lakes, was adopted as new rules by R.1985 d.717, effective 1/21/1986. See: 17 New Jersey Register 2182(a), 18 New Jersey Register 163(b).
• Subchapter 13, Sewer Extension Ban, was repealed by R.1987 d.445, effective 11/2/1987. See: 18 New Jersey Register 2163(a), 19 New Jersey Register 2000(b).
• Pursuant to Executive Order No. 66(1978), Subchapter 1, Sewer Systems and Wastewater Treatment Plants, expired on 4/25/1985.
• Subchapter 1, Sewer Systems and Wastewater Treatment Plants, was adopted as new rules by R.1988 d.205, effective 5/2/1988 as R.1988 d.205. See: 19 New Jersey Register 2227(b), 20 New Jersey Register 980(a).
• Subchapter 2, Standards for Construction of Individual Subsurface Sewage Disposal Systems, was repealed by R.1989 d.450 and recodified to N.J.A.C. 7:9A, effective 8/21/1989, (operative January 1, 1990). See: 20 New Jersey Register 1790(a), 21 New Jersey Register 2534(a).
• Pursuant to Executive Order No. 66(1978), Chapter 9, Water Pollution Control, was readopted as R.1991 d.68, effective 1/18/1991. See: 22 New Jersey Register 3297(a), 23 New Jersey Register 406(c).
• Notice of petition to amend New Jersey Pollution Discharge Elimination System permits. See: 23 New Jersey Register 236(a), 23 New Jersey Register 622(b).
• Subchapter 6, Ground Water Quality Standards, was repealed and new rules were adopted by R.1993 d.73, effective 2/1/1993. See: 24 New Jersey Register 181(a), 25 New Jersey Register 464(a).
• Subchapter 4 was recodified to N.J.A.C. 7:9B-1by R.1993 d.610, effective 12/6/1993. See: 24 New Jersey Register 3983(a), 24 New Jersey Register 4471(a), 25 New Jersey Register 404(a), 25 New Jersey Register 5569(a).
• Public Notice: Opportunity for interested party review for rule amendment. See: 25 New Jersey Register 411(a).
• Subchapter 1, Sewer Systems and Wastewater Treatment Plants, was repealed by R.1994 d.278, effective 6/6/1994. See: 25 New Jersey Register 3282(a), 26 New Jersey Register 2413(b). See, now, N.J.A.C. 7:14A-22 and 23.
• Pursuant to Executive Order No. 66(1978), Chapter 9 was readopted as R.1996 d.86, effective 1/18/1996. See: Source and effective date.
• The expiration date for Chapter 9, Water Pollution Control, was extended by gubernatorial directive from January 18, 2001 to January 1, 2002. See: 33 New Jersey Register 553(b).
• Subchapter 9, Sealing of Abandoned Wells, was repealed by R.2001 d.313, effective 9/4/2001 (operative October 4, 2001). See: 32 N.J.R. 2832(a), 33 N.J.R. 3194(a).
• The expiration date for Chapter 9, Water Pollution Control, was extended by gubernatorial directive from January 18, 2002 to August 18, 2002. See: 34 N.J.R. 920(a).
• Subchapter 2, Lake Restoration Funds, was repealed, and Subchapter 15, Grants Restoring Publicly Owned Freshwater Lakes, was recodified as Chapter 7:23, Administration of Lake Restoration Projects, by R.2002 d.410, effective 12/16/2002. See: 34 New Jersey Register 2399(a), 34 New Jersey Register 4436(a).
• In accordance with N.J.S.A. 52:14B-5.1d, Chapter 9, Water Pollution Control, expiration date was extended by gubernatorial directive from August 18, 2002 to February 5, 2004. See: 34 New Jersey Register 3079(a).
• Chapter 9, Water Pollution Control, expiration date was extended by gubernatorial directive from February 5, 2004 to February 5, 2006. See: 36 New Jersey Register 1191(a).
• Subchapter 5, Wastewater Discharge Requirements, was recodified to N.J.A.C. 7:14A by administrative change. See: 37 N.J.R. 3648(a).
• Subchapter 6, Ground Water Quality Standards, was readopted and recodified to N.J.A.C. 7:9C by R. 2005 d.368, effective 10/4/2005. See: 36 N.J.R. 4374(b), 5057(a), 5636(a) and 37 N.J.R. 4226(b).

N.J. Admin. Code Tit. 7, ch. 16 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Unless otherwise expressly noted, all provisions of Subchapter 1 were adopted pursuant to authority of N.J.S.A. 13:1D-1 et seq. and were filed and became effective on January 23, 1978, as R.1978 d.18. See: 9 N.J.R. 460(a), 10 N.J.R. 59(c).
• Chapter 16, General Administration, expired on July 1, 2006.

N.J. Admin. Code Tit. 7, ch. 17 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 17, Hard Shell Clam Depuration Pilot Plant Program, became effective February 19, 1981 as R.1981 d.56. See: 12 New Jersey Register 253(a), 13 New Jersey Register 194(a). This chapter expired February 19, 1986, pursuant to Executive Order 66(1978). New Rules were adopted effective April 7, 1986 as R.1986 d.83. See: 18 New Jersey Register 140(a), 18 New Jersey Register 657(a). Amendments to this chapter became effective April 7, 1986 as R.1986 d.82. See: 18 New Jersey Register 141(a), 18 New Jersey Register 653(a). Chapter 17 was repealed by R.1990 d.548. See: 22 New Jersey Register 97(a), 22 New Jersey Register 3508(a).

N.J. Admin. Code Tit. 7, ch. 19A RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 19A, formerly Emergency Water Supply Allocation Plan Regulations, was adopted as R.1985 d.67, effective February 19, 1985. See: 16 New Jersey Register 308(a), 17 New Jersey Register 438(a). Pursuant to Executive Order No. 66 (1978), Chapter 19A expired on February 19, 1990, and subsequently was adopted as new rules by R.1990 d.163, effective March 19, 1990. See: 22 New Jersey Register 102(a), 22 New Jersey Register 944(a). Pursuant to Executive Order No. 66 (1978), Chapter 19A was readopted as R.1995 d.162, effective February 24, 1995. As a part of R.1995 d.162, Chapter 19A was recodified at Chapter 19, Water Supply Allocation, effective March 20, 1995. See: 26 New Jersey Register 4912(a), 27 New Jersey Register 1265(a).

N.J. Admin. Code Tit. 7, ch. 19B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 19B, formerly Water Emergency Surcharge Schedule Rules, was adopted as R.1985 d.67, effective February 19, 1995. See: 16 New Jersey Register 314(a), 17 New Jersey Register 438(a). Pursuant to Executive Order No. 66 (1978), Chapter 19B expired on February 19, 1990, and subsequently was adopted as new rules by R.1990 d.164, effective March 19, 1990. See: 22 New Jersey Register 106(a), 22 New Jersey Register 947(a). Pursuant to Executive Order No. 66 (1978), Chapter 19B was readopted as R.1995 d.162, effective February 24, 1995. As a part of R.1995 d.162, Chapter 19B was recodified at Chapter 19, Water Supply Allocation, effective March 20, 1995. See: 26 New Jersey Register 4912(a), 27 New Jersey Register 1265(a).

N.J. Admin. Code Tit. 7, ch. 21 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• All provisions of this chapter were adopted pursuant to authority delegated at N.J.S.A. 13:10-1. Subchapter 7 was adopted effective March 25, 1977 as R.1977 d.107. See: 8 N.J.R. 507(a), 9 N.J.R. 217(b). Amendments to Subchapter 4 became effective April 11, 1979 as R.1979 d.142. See: 10 N.J.R. 310(a), 11 N.J.R. 230(c). This chapter was amended by organizational amendments as R.1981 d.366, effective September 10, 1981. See: 13 N.J.R. 705(b). Subchapter 4, Procedures for Public Hearings, expired on April 10, 1984 pursuant to Executive Order 66(1978). The Department has found the rules to be obsolete and should be removed from the code. New rules will not be adopted.
• Chapter 21, Water Resource Management, expired on July 1, 2006.

N.J. Admin. Code Tit. 7, ch. 22A RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 22A, Sewage Infrastructure Improvement Act Grants, was adopted as R.1990 d.69, effective February 5, 1990 with Subchapters 1 through 3 and 6. See: 21 N.J.R. 1948(a), 22 N.J.R. 368(a), 22 N.J.R. 563(b). Subchapter 4, Final Mapping and Monitoring Requirements, was adopted as R.1991 d.307, effective June 17, 1991. See: 22 N.J.R. 2870(a), 23 N.J.R. 1926(a). Subchapter 7, Interconnection/Cross-Connection Abatement Account Procedures and Requirements, was adopted as R.1993 d.409, effective August 16, 1993. See: 25 N.J.R. 1643(a), 25 N.J.R. 3760(a).
• Pursuant to Executive Order No. 66(1978), Chapter 22A, Sewage Infrastructure Improvement Act Grants, was readopted as R.1995 d.47, effective December 22, 1994. See: 26 N.J.R. 3793(a), 27 N.J.R. 324(b).
• Chapter 22A, Sewage Infrastructure Improvement Act Grants, was readopted as R.1999 d.414, effective November 3, 1999. See: 31 N.J.R. 2099(a), 31 N.J.R. 4012(a).
• Chapter 22A, Sewage Infrastructure Improvement Act Grants, was readopted as R.2005 d.154, effective April 21, 2005. See: 36 N.J.R. 5290(a), 37 N.J.R. 1787(a).
• In accordance with N.J.S.A. 52:14B-5.1d, the expiration date of Chapter 22A, Sewage Infrastructure Improvement Act Grants, was extended by gubernatorial directive from April 21, 2010 to April 21, 2011. See: 42 N.J.R. 468(a).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 22A, Sewage Infrastructure Improvement Act Grants, expired on April 21, 2013. See: 43 N.J.R. 1203(a).

N.J. Admin. Code Tit. 7, ch. 23 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 23, Flood Control Bond Grants, was adopted as R.1979 d.202, effective June 22, 1979. See: 11 N.J.R. 121(a), 11 N.J.R. 277(a).
• Pursuant to Executive Order No. 66(1978), Chapter 23, Flood Control Bond Grants, was readopted as R.1984 d.277, effective June 18, 1984. See: 16 N.J.R. 668(a), 16 N.J.R. 1765(a).
• Pursuant to Executive Order No. 66(1978), Chapter 23, Flood Control Bond Grants, was readopted as R.1989 d.348, effective June 9, 1989. See: 21 N.J.R. 1051(a), 21 N.J.R. 1903(a).
• Pursuant to Executive Order No. 66(1978), Chapter 23, Flood Control Bond Grants, was readopted as R.1994 d.308, effective May 27, 1994. See: 26 N.J.R. 1334(a), 26 N.J.R. 2599(a). Pursuant to Executive Order No. 66(1978), Chapter 23, Flood Control Bond Grants, expired on May 27, 1999.
• Chapter 23, Administration of Lake Restoration Projects, recodified and renamed from N.J.A.C. 7:9-15, Grants for Restoring Publicly Owned Freshwater Lakes, was readopted as R.2002 d.410, effective November 20, 2002. See: 34 N.J.R. 2399(a), 34 N.J.R. 4436(a). Chapter 23, Administration of Lake Restoration Projects, expired on November 20, 2007.

N.J. Admin. Code Tit. 7, ch. 24 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 24, Dam Restoration Grant Regulations was adopted as R.1981 d.104, effective April 9, 1981. See: 13 New Jersey Register 9(a), 13 New Jersey Register 195(b). Pursuant to Executive Order No. 66(1978), Chapter 24, Dam Restoration Grant Regulations, expired on March 12, 1986.
• Chapter 24, Dam Restoration Grant Regulations, was adopted as new rules by R.1986 d.186, effective May 19, 1986. See: 18 New Jersey Register 395(a), 18 New Jersey Register 1101(a).
• Pursuant to Executive Order No. 66(1978), Chapter 24, Dam Restoration Grant Regulations, was readopted as R.1991 d.256, effective April 22, 1991. See: 23 New Jersey Register 650(a), 23 New Jersey Register 1665(a).
• Pursuant to Executive Order No. 66(1978), Chapter 24, Dam Restoration Grant Regulations, was readopted as R.1996 d.208, effective April 4, 1996. See: 28 New Jersey Register 244(a), 28 New Jersey Register 2374(b). Pursuant to Executive Order No. 66(1978), Chapter 24, Dam Restoration Grant Regulations, expired on April 4, 2001.

N.J. Admin. Code Tit. 7, ch. 29B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 29B, Noise Determination, was originally promulgated as R.1982 d.81. See: 13 New Jersey Register 127(b), 14 New Jersey Register 339(a). The chapter expired pursuant to Executive Order No. 66(1978) on April 5, 1987. The chapter was adopted as new rules pursuant to Executive Order No. 66(1978), effective 2/1/1988 as R.1988 d.58. See: 19 New Jersey Register 1483(a), 20 New Jersey Register 278(a). The chapter expired pursuant to Executive Order No. 66(1978) on February 1, 1993. The rules in the chapter were adopted and recodified to N.J.A.C. 7:29-2by R.1993 d.301, effective 6/21/1993. See: 25 New Jersey Register 1040(a), 25 New Jersey Register 2721(a).

N.J. Admin. Code Tit. 7, ch. 32 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 32, Energy Conservation in State Buildings, was adopted as R.1993 d.347, effective 7/6/1993. See: 25 New Jersey Register 1655(a), 25 New Jersey Register 2868(a).
• Pursuant to Executive Order No. 66(1978), Chapter 32, Energy Conservation in State Buildings, was readopted as R.1998 d.351, effective 6/12/1998, and was recodified as N.J.A.C. 14:30, effective 7/6/1998. See: 30 New Jersey Register 1371(a), 30 New Jersey Register 2510(b).

N.J. Admin. Code Tit. 7, ch. 37 RESERVED

History

• HISTORICAL NOTE:
• All provisions of this chapter "State Aid to Local Environmental Agencies" were adopted pursuant to authority of N.J.S.A. 13:1D-1 et seq., 13:1H-1 et seq. and P.L. 1978 c.60 and were filed and became eff. 3/30/1979 as R.1979 d.134. See: 10 New Jersey Register 420(a), 11 New Jersey Register 230(b). Amendments became effective 7/5/1979 as R.1979 d.263. See: 11 New Jersey Register 275(a), 11 New Jersey Register 374(a). Further amendments became effective 4/25/1980 as R.1980 d.183. See: 12 New Jersey Register 111(b), 12 New Jersey Register 313(d). This chapter expired March 30, 1984 pursuant to Executive Order 66(1978). The Department found these rules to be obsolete and allowed them to expire without readoption.

N.J. Admin. Code Tit. 7, ch. 60 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 60, Assessment of Generators for the Cost of Siting and Developing a Low-Level Radioactive Waste Disposal Facility, was adopted as R.1992 d.109, effective 3/2/1992. See: 23 New Jersey Register 3410(b), 24 New Jersey Register 840(a).
• Public Notice: Adoption of Low-Level Radioactive Waste Disposal Plan 1996 Update. See: 28 New Jersey Register 2412(a).
• Pursuant to Executive Order No. 66(1978), Chapter 60, Assessment of Generators for the Cost of Siting and Developing a Low-Level Radioactive Waste Disposal Facility, was readopted as R.1997 d.63, effective 1/10/1997. See: 28 New Jersey Register 4556(a), 29 New Jersey Register 508(a).
• Chapter 60, Assessment of Generators for the Cost of Siting and Developing a Low-Level Radioactive Waste Disposal Facility, expired on 1/10/2002.

N.J. Admin. Code Tit. 7, ch. 61 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 61, Rules of the Board of Commissioners of Pilotage, was adopted as R.1993 d.212, effective 5/17/1993. See: 25 New Jersey Register 625(a), 25 New Jersey Register 2123(a).
• Pursuant to Executive Order No. 66(1978), Chapter 61, Rules of the Board of Commissioners of Pilotage, was readopted as R.1998 d.244, effective 4/22/1998. See: 30 New Jersey Register 764(a), 30 New Jersey Register 1810(a).
• Chapter 61, Rules of the Board of Commissioners of Pilotage, was repealed and Chapter 61, Rules of the Board of Commissioners of Pilotage, was adopted as new rules by R.1999 d.129, effective 4/19/1999. See: 31 New Jersey Register 6(b), 31 New Jersey Register 1084(b).
• Chapter 61, Rules of the Board of Commissioners of Pilotage, was readopted as R.2004 d.361, effective 8/26/2004. See: 36 New Jersey Register 2401(a), 36 New Jersey Register 4305(a).
• Pursuant to P.L. 2004, c. 72, Chapter 61, Rules of the Board of Commissioners of Pilotage, was recodified as N.J.A.C. 16:64, effective 9/17/2004. See: 36 New Jersey Register 4835(a).

N.J. Admin. Code Tit. 7, ch. 62 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 62, Landscape Irrigation Contractors, was adopted as R.1996 d.21, effective 1/2/1996. See: 27 N.J.R. 1098(a), 28 N.J.R. 148(a).
• Pursuant to Executive Order No. 66(1978), Chapter 62, Landscape Irrigation Contractors, expired on 1/2/2001.
• Chapter 62, Landscape Irrigation Contractors, was adopted as new rules by R.2001 d.225, effective 7/2/2001. See: 32 N.J.R. 3888(a), 33 N.J.R. 746(b), 33 N.J.R. 2289(a).
• Chapter 62, Landscape Irrigation Contractors, was readopted as R.2006 d.435, effective 11/20/2006. See: 38 N.J.R. 3109(a), 38 N.J.R. 5357(a).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 62, Landscape Irrigation Contractors, was scheduled to expire November 20, 2013. See: 43 N.J.R. 1203(a).
• Chapter 62, Landscape Irrigation Contractors, was readopted as R.2014 d.051, effective 2/20/2014. As a part of R.2014 d.051, Subchapter 2, Certification, was renamed Certification and Renewal; Subchapter 3, Business Permit, Subchapter 6, Enforcement, Subchapter 7, Hearing Requests, and the chapter Appendix were adopted as new rules; former Subchapter 3, Fees, was recodified as Subchapter 4, Fee Schedule; and former Subchapter 4, Other Provisions, was recodified as Subchapter 5, Additional Requirements, effective 3/17/2014. See: See: 45 N.J.R. 2296(a), 46 N.J.R. 533(a).
• Chapter 62, Landscape Irrigation Contractors, was recodified to N.J.A.C. 5:62 by administrative change, effective 2/21/2017. See: 49 N.J.R. 332(a).

Chapter 1C ENVIRONMENTAL JUSTICE

N.J. Admin. Code Tit. 7, ch. 1C, app APPENDIX APPENDIX

| Concentrated Areas of Air Pollution | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Ground-Level Ozone | Affected | 3-year average days above standard | Most recent USEPA¹ Ambient Air Quality Daily Summary data | | Fine Particulate Matter (PM_2.5²) | Affected | 3-year average days above standard | Most recent USEPA Ambient Air Quality Daily Summary data | | Air Toxics Cancer Risk Including Diesel Particulate Matter | Affected | Estimated cancer risk per million | Most recent AirToxScreen NJ state summary file | | Air Toxics Cancer Risk Excluding Diesel Particulate Matter | Affected | Estimated cancer risk per million | Most recent AirToxScreen NJ state summary file | | Air Toxics Non-Cancer Risk | Affected | Combined Hazard Quotient | Most recent AirToxScreen NJ state summary file |

¹United Stated Environmental Protection Agency

²Particulate matter composed of particles smaller than 2.5 microns

| Mobile Sources of Air Pollution | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Traffic-Cars, Light-and Medium-Duty Trucks | Affected | AADT³-mile per square mile | Most recent FHWA⁴ HPMS⁵ data | | Traffic-Heavy-Duty Trucks | Affected | AADT-mile per square mile | Most recent FHWA HPMS data | | Railways | Affected | Rail miles per square mile | Most recent NJDOT⁶Railroads Network data |

³Annual Average Daily Traffic

⁴U.S. Department of Transportation, Federal Highway Administration

⁵Highway Performance Monitoring System

⁶New Jersey Department of Transportation

| Contaminated Sites | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Known Contaminated Sites | Affected | Weighted sites per square mile | Most recent NJDEP Known Contaminated Site List data | | Soil Contamination Deed Restrictions | Affected | Percent area | Most recent NJDEP Deed Notice Extent in New Jersey data | | Ground Water Classification Exception Areas/Currently Known Extent Restrictions | Affected | Percent area | Most recent NJDEP CEA⁷ and CKE⁸ data |

⁷Classification Exception Areas-Well Restriction Areas for New Jersey

⁸Currently Known Extent of Groundwater Contamination for New Jersey

| Transfer Stations or Other Solid Waste Facilities, Recycling Facilities, and Scrap Metal Facilities | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Solid Waste Facilities | Affected | Sites per square mile | Most recent NJDEP Solid & Hazardous Waste Facilities in New Jersey data | | Scrap Metal Facilities | Affected | Sites per square mile | Most recent NJDEP Scrap Metal Facilities data |

| Point-Sources of Water Pollution | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Surface Water | Affected | Percent uses impaired | Most recent NJDEP Integrated List of Waters for New Jersey | | Combined Sewer Overflows | Affected | Count | Most recent NJDEP Combined Sewer Overflow (CSO) for NJ |

| May Cause Potential Public Health Impacts | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Drinking Water | Baseline | Count of community drinking water violations or exceedances, or percent of PWTA⁹ exceedances | Most recent NJDEP Private Well Testing Act Summary Results | | Potential Lead Exposure | Baseline | Percent houses older than 1950 | Most recent U.S. Census five-year ACS<12> data | | Lack of Recreational Open Space | Affected | Population per acre of open space within 0.25 mile | Most recent NJDEP State, Local and Nonprofit Open Space of New Jersey data | | Lack of Tree Canopy | Affected | Percent lack of tree canopy | Most recent USFS¹⁰ Analytical Tree Canopy Cover data | | Impervious Surface | Affected | Percent impervious surface | Most recent NJDEP County Impervious Surface of New Jersey data | | Flooding (Land Use Cover) | Affected | Percent urban land use area flooded | Most recent NJDEP Urban Flooding data |

⁹Private Well Testing Act

¹⁰United States Forest Service

| Density/Proximity Stressors | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Emergency Planning Sites | Affected | Sites per square mile | Most recent NJDEP Facility Density Data | | Permitted Air Sites | Affected | Sites per square mile | Most recent NJDEP Facility Density Data | | NJPDES¹¹ Sites | Affected | Sites per square mile | Most recent NJDEP Facility Density Data |

¹¹New Jersey Pollutant Discharge Elimination System

| Social Determinants of Health | | | | | --- | --- | --- | --- | | Stressor | Designation | Measure | Source | | Unemployment | Baseline | Percent unemployed | Most recent U.S. Census Bureau five-year ACS¹² data | | Education | Baseline | Percent without high school diploma | Most recent U.S. Census Bureau five-year ACS data |

¹²American Community Survey

History

• Adopted by 55 N.J.R. 661(b), effective 4/17/2023

Chapter 1K POLLUTION PREVENTION PROGRAM RULES

N.J. Admin. Code Tit. 7, ch. 1K, app C

Click here to view image.

Click here to view image.

Chapter 7 COASTAL ZONE MANAGEMENT RULES

N.J. Admin. Code Tit. 7, ch. 7, app E ILLUSTRATION REGARDING THE CONSTRUCTION OF A SINGLE NONCOMMERCIAL DOCK, PIER, OR BOAT MOORING IN SHELLFISH HABITAT PURSUANT TO N.J.A.C. 7:7-9.2(d)3ii

(Note: A dock or pier as well as a boat mooring are shown for illustration purposes only; only one single dock, pier, or boat mooring is allowed pursuant to N.J.A.C. 7:7-9.2(d)3 ii.

Click here to view

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code Tit. 7, ch. 7, app F ILLUSTRATION OF CONSTRUCTION OF A NEW COMMERCIAL MARINA PURUSANT TO N.J.A.C. 7:7-9.2(d)5

Click here to view

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code Tit. 7, ch. 7, app H BOUNDARIES OF NON-MAINLAND COASTAL CENTERS IN THE CAFRA AREA

For purposes of N.J.A.C. 7:7-13, this appendix sets forth the boundaries of the non-mainland coastal centers in the CAFRA area.

In accordance with N.J.A.C. 7:7-13.3(d), the impervious cover allowed on a site within a Department-delineated coastal center must be placed on the net land area of the site, as determined under N.J.A.C. 7:7-13.3(e). The placement of impervious cover on a site in a coastal center may be further restricted by other provisions of this chapter, including the special area rules at N.J.A.C. 7:7-9.

The appendix is organized as follows: Counties are listed alphabetically. Within each county, the municipalities are listed alphabetically. Within each municipality, the non-mainland coastal centers are listed alphabetically.

I. Atlantic County coastal centers on barrier islands, spits, and peninsulas

A. Brigantine coastal town

1. The coastal town boundary follows the municipal boundary of the City of Brigantine, but does not include any bay islands or the Absecon Wildlife Management Area.

II. Cape May County coastal centers on barrier islands, spits and peninsulas

A. Lower Township coastal centers

1. Diamond Beach coastal town

a. The coastal town boundary extends from the intersection of the Wildwood Crest/Lower Township municipal boundary and Park Boulevard thence southwest on Park Boulevard to North Station Avenue, thence southeast on North Station Avenue to Ocean Drive (County route 621), thence southwest on Ocean Drive (County route 621) to Madison Avenue, thence southeast on Madison Avenue to its end, thence southeast on the same bearing to the water's edge, thence northeast along the water's edge to the municipal boundary, and thence northwest along the municipal boundary to Park Boulevard.

B. Sea Isle City coastal town

1. The coastal town boundary follows the municipal boundary of Sea Isle City, but does not include the area north of a line that extends along 22nd Street and along the same bearing from either end of 22nd Street to the mean high water line.

III. Monmouth County coastal centers on barrier islands, spits and peninsulas

A. Monmouth Beach coastal town

1. The coastal town boundary follows the municipal boundary of the Borough of Monmouth Beach, but does not include any bay islands.

B. Sea Bright coastal town

1. The coastal town boundary follows the municipal boundary of the Borough of Sea Bright, but does not include any bay islands.

IV. Ocean County coastal centers on barrier islands, spits and peninsulas

A. Barnegat Light coastal village

1. The coastal village boundary follows the municipal boundary of Barnegat Light Borough, but does not include any bay islands or Barnegat Light State Park.

B. Bay Head coastal town

1. The coastal town boundary follows the municipal boundary of Bay Head Borough.

C. Beach Haven Borough coastal town

1. The coastal town boundary follows the municipal boundary of Beach Haven Borough, but does not include any bay islands.

D. Berkeley Township coastal town

1. The coastal town boundary circumscribes that part of Berkeley Township that is east of Barnegat Bay, north of Island Beach State Park and south of Seaside Park Borough.

E. Brick Township coastal centers

1. South Mantoloking coastal village

a. The coastal village boundary circumscribes that part of Brick Township that is east of Barnegat Bay, north of Toms River Township, and south of Mantoloking Borough, but does not include any bay islands.

F. Toms River Township coastal centers

1. Normandy Beach/Chadwick coastal town

a. The coastal town boundary circumscribes that part of Toms River Township that is east of Barnegat Bay, north of Lavallette Borough and south of Brick Township, but does not include any bay islands.

2. Ortley Beach coastal town

a. The coastal town boundary circumscribes that part of Toms River Township that is east of Barnegat Bay, north of Seaside Heights Borough, and south of Lavallette Borough, but does not include any bay islands.

G. Harvey Cedars coastal town

1. The coastal town boundary follows the municipal boundary of Harvey Cedars Borough, but does not include any bay islands.

H. Lavallette coastal town

1. The coastal town boundary follows the municipal boundary of Lavallette Borough, but does not include any bay islands.

I. Long Beach coastal town

1. The coastal town boundary circumscribes those non-contiguous parts of Long Beach Township that are east of Barnegat Bay, but does not include any bay islands or the Holgate Unit of the Edwin B. Forsythe National Wildlife Refuge.

J. Mantoloking coastal village

1. The coastal town boundary follows the municipal boundary of Mantoloking Borough, but does not include any bay islands.

K. Seaside Park coastal town

1. The coastal town boundary follows the municipal boundary of Seaside Park Borough, but does not include any bay islands.

L. Ship Bottom coastal town

1. The coastal town boundary follows the municipal boundary of Ship Bottom Borough, but does not include any bay islands.

M. Surf City coastal village

1. The coastal village boundary follows the municipal boundary of Surf City, but does not include any bay islands.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code Tit. 7, ch. 7, app I CAFRA CENTERS

This non-regulatory appendix contains the list of CAFRA centers, CAFRA cores, and CAFRA nodes, the boundaries of which have been accepted by the Department pursuant to N.J.A.C. 7:7-13.16(b), and which are incorporated into and shown on the CAFRA Planning Map. As required at N.J.A.C. 7:7-13.17(b), an applicant shall refer to the CAFRA Planning Map in order to determine the location of a site for the purposes of determining the applicable impervious cover limits pursuant to this chapter.

The Department will update the list of CAFRA centers, CAFRA cores, and CAFRA nodes in this appendix by notice of administrative change as part of the New Jersey Register notice required at N.J.A.C. 7:7-13.16(b). The appendix is organized as follows: Counties are listed alphabetically. Within each county, the municipalities are listed alphabetically. Within each municipality, the CAFRA centers, CAFRA cores, and CAFRA nodes are listed alphabetically.

I. Atlantic County CAFRA centers and CAFRA cores

A. Atlantic City

1. Atlantic City CAFRA urban center

B. Galloway Township CAFRA cores

1. Galloway Downtown CAFRA core

2. Oceanville CAFRA core

3. Smithville CAFRA core

II. Burlington County CAFRA centers

A. Bass River Township

1. Bass River Township CAFRA node

III. Cape May County CAFRA centers

A. Cape May City

1. Cape May City CAFRA town

B. Middle Township

1. Cape May Court House CAFRA Regional Center

2. Del Haven CAFRA Village Center

3. Goshen CAFRA Hamlet Center

4. Green Creek CAFRA Village Center

5. Rio-Grand-Whitesboro-Burleigh CAFRA Regional Center

6. Swainton CAFRA Village Center

7. Hildreth CAFRA Node

8. Cape May Court House CAFRA Node

C. Cape May Point Borough

1. Cape May Point CAFRA village

D. City of Ocean City

1. Ocean City regional center

E. Middle Township

1. Cape May Court House CAFRA Regional Center

2. Del Haven CAFRA Village Center

3. Goshen CAFRA Hamlet

4. Green Creek CAFRA Village Center

5. Hildreth CAFRA Village Center

6. Rio-Grand-Whitesboro-Burleigh CAFRA Regional Center

7. Swainton CAFRA Village Center

F. Stone Harbor Borough

1. Stone Harbor Borough CAFRA town

G. Upper Township

1. Seaville CAFRA Town

2. Marmora CAFRA Town

3. Petersburg CAFRA Village

4. Tuckahoe CAFRA Village

5. Redevelopment Area CAFRA node

H. Wildwood City/North Wildwood City/Wildwood Crest Borough/West Wildwood Borough

1. The Wildwoods CAFRA regional center

IV. Cumberland County CAFRA centers

A. Commercial Township CAFRA centers and CAFRA nodes

1. Mauricetown-Haleyville CAFRA village

2. Laurel Lake CAFRA village

3. Port Norris CAFRA village

4. Bivalve/Shellpile Working Waterfront node

B. Maurice River Township CAFRA centers and CAFRA nodes

1. Port Elizabeth CAFRA village

2. Dorchester-Leesburg CAFRA village

3. Heislerville CAFRA village

4. Mauricetown Station CAFRA Commercial node

5. Dorchester CAFRA Commercial node

6. Penny Hill CAFRA Commercial node

7. Leesburg-River Road CAFRA Commercial node

V. Monmouth County CAFRA centers

A. Long Branch City

1. Long Branch CAFRA regional center

VI. Ocean County CAFRA centers

A. Brick Township

1. Brick Commercial CAFRA Core

2. Brick Hospital CAFRA Core

B. Berkeley Township

1. Berkeley CAFRA Town Center

2. Berkeley CAFRA Core

3. Berkeley CAFRA Node

C. Barnegat Township

1. Barnegat CAFRA Town Center

2. Barnegat CAFRA Core

D. Lacey Township

1. Lacey CAFRA Town Center

2. Lacey Business Center CAFRA Node

3. Oyster Creek CAFRA Node

E. Lakewood Township

1. Cedarbridge Core

2. Cross Street and Prospect Avenue Core

3. East New Jersey Route 70 Core

4. James and Prospect Streets Industrial Park Node

5. Lakewood Downtown Regional Center

6. Lakewood Industrial Park and Campus Node

7. Oak Street Core

8. U.S. Route 9 Core

9. West New Jersey Route 70 Core

10. Lakewood Industrial Node

11. Lakewood Public Service Node

F. Stafford Township

1. Stafford/Manahawkin CAFRA regional center

2. Stafford Commercial Node

G. Toms River Township

1. Toms River CAFRA Downtown Regional Center, East and West

2. Toms River CAFRA Industrial Regional Center

3. Route 37 West Highway Core

4. Route 37 East Highway Core

5. Hooper Avenue Highway Core

6. Fischer Boulevard Highway Core

7. Route 9 Highway Core

8. Route 70 Highway Core

VII. Salem County CAFRA centers and CAFRA nodes

A. Lower Alloways Township

1. PSE & G Energy Facility node

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015

N.J. Admin. Code Tit. 7, ch. 7, app J BOUNDARIES OF MAINLAND COASTAL CENTERS IN THE CAFRA AREA RE-ESTABLISHED UNDER THE PERMIT EXTENSION ACT OF 2008 AS AMENDED JANUARY 18, 2010, SEPTEMBER 19, 2012, AND DECEMBER 26, 2014

For purposes of N.J.A.C. 7:7-13, this appendix sets forth the boundary descriptions of the mainland coastal centers whose March 15, 2007, expiration has been extended under the Permit Extension Act of 2008, N.J.S.A. 40:55D-136.1 et seq. and the January 18, 2010, September 19, 2012, and December 26, 2014, amendments to that Act. The areas listed at N.J.A.C. N.J.A.C. 7:7-13.19(d) shall not be considered part of a mainland coastal center. In addition, the areas that are within the "environmentally sensitive area" defined by the Permit Extension Act of 2008, as amended, at N.J.S.A. 40:55D-136.3, were not extended by the Act and, therefore, are not part of the mainland coastal center. Further information on the Permit Extension Act and environmentally sensitive areas is described on the Department's webpage at http://www.nj.gov/dep/landuse/pea.html.

In accordance with N.J.A.C. 7:7-13.3(d), the impervious cover allowed on a site within a mainland coastal center must be placed on the net land area of the site, as determined under N.J.A.C. 7:7-13.3(e). The placement of impervious cover on a site in a mainland coastal center may be further restricted by other provisions of this chapter, including the special area rules at N.J.A.C. 7:7-9.

The appendix is organized as follows: counties are listed alphabetically. Within each county, the municipalities are listed alphabetically. Within each municipality, the non-mainland coastal centers are listed alphabetically.

I. Atlantic County coastal centers

A. Egg Harbor Township coastal centers

1. Egg Harbor coastal town

a. The coastal town boundary extends from the intersection of English Creek Avenue and Schoolhouse Lane, thence south on Schoolhouse Lane to Mays Landinomers Point Road (County Route 559), thence southeast on Mays Landinomers Point Road (County Route 559) to Steelmanville Road (County Route 651), thence east on Steelmanville Road (County Route 651) to Robert Best Road, thence northeast on Robert Best Road to a point that is a perpendicular distance of 2,000 feet west of Ocean Heights Avenue, thence south along a line that is parallel to and 2,000 feet west of Ocean Heights Avenue to Steelmanville Road (County Route 651), thence west on Steelmanville Road (County Route 651) to a point that is a perpendicular distance of 3,000 feet west of Ocean Heights Avenue, thence south along a line that is parallel to and 3,000 feet west of Ocean Heights Avenue to the Garden State Parkway, thence northeast on the Garden State Parkway to Ocean Heights Avenue, thence northwest on Ocean Heights Avenue to a point that is a perpendicular distance of 2,000 feet north of English Creek Avenue, thence west along a line that is parallel to and 2,000 feet north of English Creek Avenue to Evergreen Avenue, thence south on Evergreen Avenue to English Creek Avenue, and thence west on English Creek Avenue to Schoolhouse Lane.

II. Cape May County coastal centers

A. Lower Township coastal centers

1. Town Bank/North Cape May coastal town

a. The coastal town boundary extends from the intersection of Shore Drive and Pinewood Road, thence east on Pinewood Road to Clubhouse Drive, thence south on Clubhouse Drive to Fernwood Road, thence east on Fernwood Road to Norwood Road, thence south on Norwood Road to Brookdale Road, thence west on Brookdale Road to Clubhouse Drive, thence south on Clubhouse Drive to Delair, thence east on Delair to Oxford, thence south on Oxford to Racetrack, thence south on Racetrack to Town Bank Road, thence southeast on Town Bank Road to Beachhurst Drive, thence north on Beachhurst Drive to Clearwater Drive, thence north on Clearwater Drive to Linda Anne Drive, thence east on Linda Anne Drive to Margaret Drive, thence north on Margaret Drive to Heidi Drive, thence east on Heidi Drive to Bayshore Road (County Route 603), thence southwest on Bayshore Road (County Route 603) to Fire Lane, thence southeast on Fire Lane to Apple Blossom Drive, thence east on Apple Blossom Drive to Sunnyside Drive, thence south on Sunnyside Drive to a point 200 feet north of Town Bank Road, thence southeast along a line parallel to and 200 feet north of Town Bank Road to Shunpike Road, thence south on Shunpike Road to U.S. Route 9, thence west on U.S. Route 9 to Adriatic Road, thence south on the same bearing as Adriatic Road to the mean high water line of the Cape May Canal, thence west along the mean high water line to Beach Drive, thence north on Beach Drive, which becomes Shore Drive, and thence north on Shore Drive to Pinewood Road.

History

• Adopted by 47 N.J.R. 1392(a), effective 7/6/2015