NJDEP Unveils New Silver and Gold Track
Program for Environmental Performance
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.
Practice:
Environmental Law
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