Environmental and Sustainability Law Blog
NJDEP Enforcement Insight
You Received an NJDEP AONOCAPA. What next?
An Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”) is a formal NJDEP enforcement document that alleges violations of environmental law, may require corrective action, and imposes a civil administrative penalty. Unlike a Notice of Violation, an AONOCAPA may be contested through NJDEP’s administrative hearing process. Companies receiving an AONOCAPA should therefore promptly identify the applicable hearing deadline and evaluate both the underlying violation and the penalty assessment before determining how to respond. It is critical to act promptly. Failing to submit a timely hearing request will cause the AONOCAPA to become final and eliminates the opportunity to contest the alleged violations and penalty. Determine the Response Deadline The first issue is timing. There is no single response deadline that applies to every NJDEP AONOCAPA. The deadline depends on the regulatory program and may range from approximately 10 to 35 days. The applicable deadline should be stated in the enforcement document, and companies should review it and the governing regulations immediately upon receipt. Review the Facts, Legal Issues, and Penalty Once the deadline is identified, the company should review NJDEP’s allegations and the available record. That review may include permits, inspection reports, sampling data, operating records, correspondence, photographs, consultant reports, and prior enforcement history. The company should consider several separate issues. Did the alleged violation occur? Does the cited requirement apply? Does NJDEP have all of the relevant facts? Has the violation been corrected? Is the penalty calculation consistent with the applicable regulations? The underlying violation and the penalty assessment should not necessarily be viewed as the same issue. A company may agree that corrective action is appropriate while disputing the amount of the penalty or aspects of NJDEP’s factual or legal conclusions. Prepare the Administrative Hearing Request Once the matter has been evaluated, a company that intends to contest the AONOCAPA should prepare and submit its hearing request on time. A hearing request is a formal document with specific procedural requirements and potentially significant consequences. NJDEP’s current guidance requires enforcement hearing requests to address the allegations being admitted, denied, or contested; identify the issues in dispute; state the defenses being asserted; and provide supporting information. NJDEP may treat an incomplete request as deficient and may deny a request if required deficiencies are not corrected. Companies should therefore avoid treating the hearing request as a simple notice of disagreement with NJDEP. Instead, the hearing request is better understood as analogous to an answer in litigation: it begins defining the issues that are actually in dispute. Consider the Appropriate Resolution Requesting an administrative hearing does not mean that every matter will proceed to a contested hearing before an Administrative Law Judge. NJDEP’s administrative process allows for settlement discussions, and its Office of Administrative Hearings and Dispute Resolution also offers an alternative dispute resolution process. The appropriate strategy will depend on the strength of the company’s factual and legal position, the amount of the penalty, the status of corrective action, prior enforcement history, and the business consequences of the dispute. The important point is to make that decision after preserving the company’s rights through an appropriate and timely hearing request. An AONOCAPA is both an environmental compliance matter and a formal enforcement matter. Responding effectively requires attention to the immediate deadline while developing the facts needed to determine whether the best approach is to contest, negotiate, comply, or pursue a combination of those options.
October 13, 2026
NJDEP Enforcement Insight
You Received an NJDEP Notice of Violation. What Should You Do Next?
Receiving a Notice of Violation (“NOV”) from the New Jersey Department of Environmental Protection (“NJDEP”) can raise immediate concerns for a business. An NOV means that NJDEP has determined that a violation occurred, typically identifies the alleged violation, and indicates a deadline for achieving compliance. An NOV does not itself carry a civil administrative penalty and generally cannot be appealed. However, failure to address an NOV may result in additional enforcement action. For companies receiving an NOV, their first priority should be to understand the alleged violation and determine the appropriate response. Review the Allegations and Preserve the Record The company should first identify the statute, regulation, permit condition, or other requirement that NJDEP claims was violated. It should also determine what corrective action NJDEP is requiring and identify any applicable response or compliance deadlines. While the compliance deadline is sometimes set forth directly in the NOV, you should always refer to the applicable law to be sure of the compliance deadline. The underlying facts should then be reviewed. Depending on the matter, relevant materials may include permits, monitoring reports, inspection records, photographs, sampling results, operating logs, manifests, maintenance records, emails, and communications with environmental consultants. These records can be important in determining whether NJDEP has accurately described the violation and, if the matter escalates, in responding to a later enforcement action. Companies should also avoid assuming either that NJDEP is necessarily correct or that the alleged violation should automatically be disputed. Some violations are straightforward. Others may depend on technical issues, regulatory interpretation, sampling methodology, or facts that NJDEP did not have when it issued the NOV. Address Compliance and Enforcement Separately If the NOV identifies an ongoing compliance issue, the company should evaluate what steps are necessary to correct it. Corrective action, however, does not necessarily resolve the enforcement issue. Sometimes, remedying the issue will prevent NJDEP from pursuing additional enforcement, but sometimes the violation is so significant that NJDEP may pursue additional enforcement regardless of any prompt corrective actions. Additionally, a company may take corrective action without agreeing with every legal or factual conclusion in an NOV. Companies should carefully consider whether to engage with NJDEP regarding any disagreements. An NOV is not a final order, so it may not be challenged directly, but companies can informally discuss the NOV with NJDEP. Still, it is sometimes easier to simply take corrective action and doing so does not constitute an admission of fault or liability. NJDEP states that an NOV may form the basis for additional enforcement if compliance is not achieved. NJDEP may also issue more formal enforcement documents, including an Administrative Order, Notice of Civil Administrative Penalty Assessment, or an Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”). Those documents can carry different legal consequences and appeal rights. Conclusion Many NOVs involve both technical and legal issues. Environmental consultants, engineers, and facility personnel may be best positioned to evaluate the underlying environmental condition and determine the appropriate corrective measures. Legal counsel may become more important where the alleged violation is disputed, penalties could be significant, the company has prior enforcement history, operations or permits could be affected, or additional enforcement appears likely. Coordination is particularly important. A technical response to NJDEP may also contain factual statements or conclusions that become relevant if the matter later develops into a penalty case. Not every NJDEP NOV becomes a significant enforcement matter. In many cases, correction of the violation may end the matter. But the NOV stage is also an important opportunity to understand NJDEP’s concerns, evaluate the facts, address any compliance issue, and develop an appropriate response before the matter potentially escalates.
October 6, 2026
NJDEP Enforcement Insight
NJDEP NOV vs. AONOCAPA: What’s the Difference?
A Notice of Violation (“NOV”) and an Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”) are both commonly used NJDEP enforcement documents, but they have significantly different consequences. An NOV generally puts a company on notice of an alleged violation and provides an opportunity to achieve compliance. An AONOCAPA is a formal enforcement action that can order corrective action, impose a civil administrative penalty, and provide the recipient with a limited period to request an administrative hearing. If a hearing is not requested, the recipient generally waives objections to the alleged violation and penalty determination. Understanding which document NJDEP has issued is therefore important to determining the appropriate response. What Is an NJDEP Notice of Violation? NJDEP describes an NOV as an enforcement action that advises a regulated party that a violation has occurred. An NOV typically identifies the violation, the date it was discovered, and a compliance deadline. NOVs do not themselves carry civil administrative penalties. NJDEP also states that an NOV cannot be appealed through its administrative hearing process. In many instances, if the violation is corrected, no further enforcement action follows. That does not mean an NOV should be ignored. An NOV may become the basis for additional enforcement if NJDEP concludes that compliance was not achieved or determines that further action is appropriate. For this reason, companies should use the NOV stage to evaluate the factual and technical basis for NJDEP’s allegations and determine what corrective action may be required. What Is an AONOCAPA? An AONOCAPA is more significant. According to NJDEP, an AONOCAPA may be issued after a company fails to comply with an NOV or where NJDEP determines that a violation is not minor. Unlike an NOV, an AONOCAPA carries a civil administrative penalty and may also order specific corrective action. An AONOCAPA must be contested through the administrative hearing process within the applicable time frames. If not, the recipient is generally deemed to have waived all objections to the alleged violation, the required corrective actions, and any penalty assessments. The deadline for requesting a hearing is not uniform across all NJDEP programs. Hearing deadlines may vary depending on the program and document, generally ranging from approximately 10 to 35 days. The specific enforcement document and applicable regulations should therefore be reviewed immediately. Contesting an AONOCAPA through a hearing request should be done in all instances and does not generally require extensive litigation but is essential to preserve objections and provide a basis for negotiating a resolution of the alleged violations. Why the Difference Matters The distinction affects both timing and strategy. With an NOV, the immediate focus may be on investigating the violation, addressing compliance, and determining whether NJDEP’s allegations are accurate. With an AONOCAPA, the company must also consider whether to preserve its right to an administrative hearing, whether the penalty is appropriate, and whether NJDEP’s factual and legal conclusions should be challenged. Companies receiving correspondence from NJDEP should therefore begin by identifying exactly what NJDEP has issued. An NOV and an AONOCAPA may arise out of similar facts, but they do not necessarily create the same obligations, deadlines, or rights.
September 29, 2026
Environmental and Sustainability
NYDEC Announces New Environmental Justice Requirements under SEQRA and UPA
Continuing its growing initiatives to protect environmental justice communities, the New York Department of Environmental Conservation (“NYDEC”) recently announced the release of proposed amendments to its State Environmental Quality Review Act (SEQRA) and Uniform Procedures Act (UPA) rules to incorporate provisions of the Environmental Justice Siting Law, which was signed by Governor Kathy Hochul in 2022. The draft regulations, which would impact various permits for projects across the state, seek to require consideration of potential existing burdens in “disadvantaged communities” (“DACs”) that already bear higher levels of pollution, effects of climate change and socioeconomic vulnerabilities. State Environmental Quality Review Act (SEQRA) The proposed rules would require all state agencies in New York to determine if any agency action “may cause or increase a disproportionate pollution burden on a disadvantaged community that is directly or significantly indirectly affected by such action” (6 NYCRR § 617.7(c)(1)(xiii)). Such agency actions include reviewing applications for permits, licenses, zoning changes, site plans, subdivisions, and funding grants by any local or state agency in New York.. Under the existing regulatory framework, government actions resulting in at least one significant adverse environmental impact warrant a determination of significance, triggering the preparation of an Environmental Impact Statement (EIS) on the proposed action. The proposed rules would now require state agencies to evaluate whether an agency action would result in an increased burden on DACs by considering “reasonably related long-term, short-term, direct, indirect, and cumulative impacts” (6 NYCRR § 617.7(c)(2)). To facilitate the implementation of cumulative impact assessments, DEC has introduced the Disadvantaged Community Assessment Tool (DACAT), intended to help permit applicants to identify areas that fall within the criteria of disadvantaged communities. The proposed rules also update DEC’s Environmental Assessment Forms (EAFs) to require permit applicants to analyze and disclose potential disproportionate pollution burdens on DACs (6 NYCRR § 617.2(l)). Thus, the question of what constitutes a “disproportionate burden” becomes a significant consideration for applicants seeking government funding or approvals subject to SEQRA. However, this rulemaking also amends actions that do not require further review under SEQRA to include certain multi-family housing with not more than 10,000 square feet of gross floor area. Uniform Procedures Act (UPA) The proposed rules would also amend DEC’s rules under the Uniform Procedures Act (UPA), which governs how DEC processes permit applications, to further incorporate environmental justice considerations into permitting reviews, including review of applications for projects affecting wetlands, wastewater discharge, solid waste and air facility permits. In effectuating the requirements of the EJ Siting Law, new permit applicants will be required to prepare an Existing Burden Report where the activity “may cause or contribute more than a de minimis amount of pollution to any disproportionate pollution burden on a disadvantaged community.” Permit renewal and modification applications are also required to prepare Existing Burden Reports. Yet NYDEC may provide exemptions if it determines that “the permit would serve an essential environmental, health, or safety need of the disadvantaged community for which there is no reasonable alternative.” NYDEC’s proposal would require project developers to create plans for meaningful community participation, ensuring that applicants demonstrate how they will engage with and involve affected communities. Should the proposed rules go into effect, applicants would now need to “provide opportunities for meaningful community engagement” and incorporate public feedback into project designs. Permit Application Strategy Considering NYDEC’s proposed amendments, permit applicants will likely face uncertainty regarding how the new requirements will impact the permitting process and their projects. To ensure a smooth and cost-effective permitting strategy, it is important that applicants consult with experienced professionals and legal counsel early in the process, as failure to meet these standards could result in permit denials and/or the assessment of penalties. The deadline to submit comments on the proposed SEQRA changes under the EJ Siting Law is May 7, 2025. To read more about the proposed changes to SEQRA under the EJ Siting Law or to comment on the proposal, you can visit NYDEC’s rulemaking page.
March 13, 2025
