On September 20, 1999, the New Jersey Department of Environmental Protection ("NJDEP") announced a new program that will be available to entities committed to enhanced environmental performance. The premise of the program, entitled the Silver and Gold Track Program (the "Program"), is that different levels of environmental performance warrant varied levels of regulatory oversight. Thus, the Program will offer different degrees of regulatory flexibility and oversight for qualifying entities, based upon their demonstrated capability and environmental performance. The Program, which is open to the entire regulated community, is broken down into three tiers, Silver Track, Silver II Track and Gold Track. The details of Silver Track appear to have been fairly well developed, while Silver Track II and Gold Track are still evolving.
Participation in the Silver Track Program is on an "entity" basis; approval for one entity does not extend to other corporate sites, facilities or operations. Once accepted into the Silver Track Program, participants will enter into a covenant with NJDEP, agreeing to submit electronically all permit, monitoring and reporting information, to develop and implement an Operations and Environmental Compliance Plan ("OEC"), and to develop and implement a Community Outreach Plan. In return, these entities get the benefit of a number of incentives not available to the rest of the regulated community. These incentives include public recognition to enhance corporate image, single point of contact within NJDEP for all permit applications and ongoing cleanups, expedited permit processing, consolidated multi-media reporting, research and development project flexibility and "smart" permits to allow operational flexibility.
Silver Track is available to entities that have demonstrated a consistently acceptable, sustained history of compliance with all state and federal regulatory programs. More specifically, the entity must have a good five-year compliance history, have no criminal violations and maintain up-to-date facility or institutional environmental plans, such as a pollution prevention plan, stormwater pollution prevention plan and approved risk management plan. If the applicant does not meet the minimum criteria for Silver Track eligibility because of outstanding violations, NJDEP will consider entering into an administrative consent order with the applicant and accepting a new application to enter the Program one year later, provided that acceptable compliance has been maintained. Should an entity no longer wish to participate in the Program after being accepted, it may withdraw and relinquish the incentives. The commission of criminal violations or new major civil violations will be grounds for expulsion from the Program.
Silver Track II will begin as a pilot program, initially involving a small number of volunteer entities that are subject to regulation under the Air Pollution Control Act. These parties will work closely with NJDEP, the United States Environmental Protection Agency ("EPA") and a stakeholder group to, among other things, develop reasonable de minimis air emission thresholds. Once these thresholds have been developed, Silver Track II entities will be excepted from the need to obtain certain pre-construction air permits. In return, they will have to agree to a declining limit over time on CO2 emissions and suitable back-end monitoring. Silver Track II will be formalized after NJDEP evaluates the pilot program.
The Gold Track program will represent the highest tier of environmental performance and will receive the greatest degree of operational flexibility. It will be developed in three phases. Phase One will involve volunteer entities working for several months with NJDEP and stakeholder groups to establish eligibility criteria and incentives for the Gold Track. The most important element of eligibility will be a commitment to declining caps on a number of air pollutants, such as CO2, NOX, VOCs and mercury. The most important incentive will be the need to obtain fewer "front loaded" approvals in return for verifiable performance monitoring. In Phase Two, the volunteer entities will test the concepts designed in Phase One for a two-year period. Following an evaluation of the Phase Two pilot program, NJDEP will seek to institutionalize the Gold Track. The Program is the most recent attempt by NJDEP to depart from the traditional command and control approach to environmental management. It apparently was patterned after the types of regulatory programs that are so successful in certain parts of Europe, such as the Netherlands, which are dealing with environmental issues similar to those of New Jersey. These programs seek to bring about voluntary compliance through incentives that have a positive effect on the corporate bottom line. While the large corporations that participated in the development of the Program seem enthusiastic about the opportunities it presents, it is uncertain at this time how broad an appeal the Program will have on the mid-sized and small companies operating throughout the state.
