N.J. Admin. Code § 7:26A-1.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:26A-1.6 - Incorporation by reference of the Code of Federal Regulations

(a) Portions of this chapter that are prospectively incorporated by reference from any portion of 40 C.F.R. Part 273, Federal Regulations on Hazardous Waste, shall be understood in the manner set forth in this section.

(b) Unless specifically excluded by these rules, when a provision of the Code of Federal Regulations (C.F.R.) is incorporated by reference, all notes, comments, appendices, diagrams, tables, forms, figures, and publications are also incorporated by reference.

(c) Prospective incorporation by reference means the ongoing process, beginning on the most recent Federal Register date following December 17, 2002, whereby all provisions of regulations incorporated into this chapter from the Federal regulations at 40 C.F.R. Part 273 are continually and automatically updated in order to maintain consistency with the most current Federal rules. Thus, any supplements, amendments, and any other changes including, without limitation, repeals or stays that affect the meaning or operational status of a Federal rule, brought about by either judicial or administrative action and adopted or otherwise noticed by USEPA in the Federal Register, shall be paralleled by a similar automatic update to the New Jersey rule so that the New Jersey rule will have the same meaning and status as its Federal counterpart. Similarly, to maintain consistency, all new Federal regulations are also adopted into this chapter by this automatic process.

(d) Provisions of 40 C.F.R. Part 273 incorporated by reference are prospective and all internal references contained therein are also incorporated prospectively for the purposes of that provision, unless otherwise noted. Each internal reference to the C.F.R. shall be interpreted to include in addition to the Federal citation, any changes or additions or deletions made to that citation by the corresponding State subchapter. For example, all references within the C.F.R. to 40 C.F.R. Part 273 shall include the changes, additions and deletions which N.J.A.C. 7:26A-7 makes to 40 C.F.R. Part 273.

(e) Provisions of the C.F.R. which are excluded from incorporation by reference in these rules are excluded in their entirety, unless otherwise specified. If there is a cross reference to a Federal citation which was specifically entirely excluded from incorporation, the cross referenced citation is not incorporated by virtue of the cross reference. Provisions that have been excluded from incorporation by reference are also excluded from the process of prospective incorporation by reference.

(f) Federal statutes and regulations that are cited in 40 C.F.R. Part 273 that are not specifically adopted by reference shall be used to assist in interpreting the Federal regulations in 40 C.F.R. Part 273.

(g) In the event that there are inconsistencies or duplications in the requirements of the provisions incorporated by reference from the C.F.R. and the rules set forth in this chapter, the provisions incorporated by reference from the C.F.R. shall prevail, except where the rules set forth in this chapter are more stringent.

(h) Nothing in these provisions incorporated by reference from the C.F.R. shall affect the Department's authority to enforce statutes, rules, permits or orders administered or issued by the Commissioner.

(i) New Federal rules, amendments, supplements, repeals and other changes at 40 C.F.R. Part 273, brought about through administrative or judicial action, shall be automatically incorporated through the prospective incorporation process in N.J.A.C. 7:26A.

(j) New Federal rules, amendments, supplements, repeals, and other changes at 40 C.F.R. Part 273, brought about through administrative or judicial action, adopted by USEPA after July 1, 1998 but prior to December 17, 2002 shall be prospectively incorporated by reference and effective December 17, 2002 and operative either March 17, 2003 or on the operative date set by USEPA the relevant Federal Register Notice, whichever is later, unless the Department publishes a notice of proposal repealing the adoption in New Jersey of the Federal regulation in whole or in part, and/or proposing to otherwise amend the affected State rules.

(k) On or after December 17, 2002, new Federal rules, amendments, supplements, and other changes, brought about by either judicial or administrative action, automatically incorporated through the prospective incorporation by reference process shall be effective upon publication in the Federal Register and operative 90 days from the publication date or on the operative date cited by USEPA in the relevant Federal Register Notice, whichever is later, unless the Department publishes a notice of proposal repealing the adoption in New Jersey of the Federal regulation in whole or in part, and/or proposing to otherwise amend the affected State rules.

N.J. Admin. Code § 7:26A-1.6

New Rule, R.2002 d.182, effective 6/17/2002 (operative December 17, 2002).
See: 33 New Jersey Register 4273(a), 34 New Jersey Register 2088(a).