Current through Register Vol. 56, No. 18, September 16, 2024
(a) The Department may
assess a civil administrative penalty against any indirect discharger of not more
than $ 50,000, for each violation of each provision of the Water Pollution Control
Act and for each violation of any rule, pretreatment standard, effluent limitation,
administrative order or permit issued pursuant thereto. The Department shall assess
a minimum mandatory civil administrative penalty in an amount:
1. Not less than $ 1,000 for each serious
violation as defined under
7:14-8.2; and
2. Not less than $ 5,000 for each violation that
causes a violator to be, or continue to be, a significant noncomplier as defined
under 7:14-8.2.
(b) Each violation of any provision of the Water
Pollution Control Act or any rule, pretreatment standard, effluent limitation,
administrative order or permit issued by the Department, shall constitute an
additional, separate and distinct violation. In addition, the unpermitted discharge
of each separate pollutant shall constitute an additional, separate and distinct
violation.
(c) Each day during which a
violation as set forth in (b) above continues shall constitute an additional,
separate and distinct violation.
(d)
Unless the Department assesses a civil administrative penalty as set forth in
7:14-8.6 through
7:14-8.12, the Department may assess a
civil administrative penalty for violations described in this section as described
in (e) below, including any applicable grace period in accordance with
7:14-8.18.
(e) To assess a civil administrative penalty
pursuant to this section, the Department shall:
1.
Identify the penalty range within the matrix in (f) below by:
i. Determining the seriousness of the violation
pursuant to (g) below; and
ii.
Determining the conduct of the violator pursuant to (h) below; and
2. Assess the penalty at the midpoint
of the range within the matrix in (f) below, unless adjusted pursuant to (i)
below.
(f) The matrix of
ranges of penalties is as follows:
| CONDUCT | SERIOUSNESS |
| Major | Moderate | Minor |
| Major | $ 10,000- | $ 5,000- | $
2,000- |
| $ 50,000 | $ 25,000 | $ 13,000 |
| Moderate | $ 5,000- | $ 2,500- | $
500- |
| $ 10,000 | $ 5,000 | $ 3,000 |
| Minor | $ 500- | $ 500- | $ 250- |
| $ 7,500 | $ 2,500 | $ 1,250 |
(g) The
Department shall determine the seriousness of the violation as major, moderate or
minor as set forth in (g)1 through 3 below.
1.
Major shall include:
i. Any violation of any
effluent limitation that is measured by concentration or mass for any discharge
exceeding the effluent limitation as follows:
(1)
By more than 50 percent for a hazardous pollutant;
(2) By more than 100 percent for a non-hazardous
pollutant; or
(3) Any discharge of a
pollutant that has caused imminent endangerment to human health, welfare or to the
environment; or
ii. The
greatest violation of a pH effluent range in any one calendar day which violation
deviates from the midpoint of the range by more than 50 percent of the midpoint of
the range excluding the excursions specifically excepted by a NJPDES/SIU issued
permit with continuous pH monitoring; or
iii. Any other violation not included in (g)1i or
ii above which either:
(1) Has caused or has the
potential to cause serious harm to human health or the environment; or
(2) Seriously deviates from the requirements of
the Water Pollution Control Act or of any rule, pretreatment standards, effluent
limitation, administrative order or permit issued pursuant thereto; serious
deviation shall include, but not be limited to, those violations that are in
complete contravention of the requirement, or if some of the requirement is met,
which severely impair or undermine the operation or intent of the
requirement.
2.
Moderate shall include:
i. Any violation, other
than a violation of an effluent limitation identified in (g)2ii or iii below, which
has caused or has the potential to cause substantial harm to human health or the
environment;
ii. Any violation of an
effluent limitation which is measured by concentration or mass of any discharge
exceeding the effluent limitation as follows:
(1)
By 20 to 50 percent for a hazardous pollutant; or
(2) By 40 to 100 percent for a non-hazardous
pollutant;
iii. The greatest
violation of a pH effluent range in any one calendar day which violation deviates
from the midpoint of the range by at least 40 percent but no more than 50 percent of
the midpoint of the range excluding the excursions specifically excepted by a
NJPDES/SIU issued permit with continuous pH monitoring; or
iv. Any violation, other than a violation of an
effluent limitation identified in (g)2ii or iii above, which substantially deviates
from the requirements of the Water Pollution Control Act or of any rule,
pretreatment standards, effluent limitation, administrative order or permit issued
pursuant thereto; substantial deviation shall include, but not be limited to,
violations that are in substantial contravention of the requirements or which
substantially impair or undermine the operation or intent of the
requirement.
3. Minor shall
include:
i. Any violation, other than a violation
of an effluent limitation identified in (g)3ii or iii below, not included in (g)1 or
2 above;
ii. Any violation of an
effluent limitation which is measured by concentration or mass for any discharge
exceeding the effluent limitation as follows:
(1)
By less than 20 percent for a hazardous pollutant; or
(2) By less than 40 percent for a non-hazardous
pollutant; or
iii. The
greatest violation of a pH effluent range in any one calendar day which violation
deviates from the midpoint of the range by less than 40 percent of the midpoint of
the range excluding the excursions specifically excepted by a NJPDES/SIU issued
permit with continuous pH monitoring.
(h) The Department shall determine the conduct of
the violator as major, moderate or minor as follows:
1. Major shall include any intentional,
deliberate, purposeful, knowing or willful act or omission by the
violator;
2. Moderate shall include any
unintentional but foreseeable act or omission by the violator; or
3. Minor shall include any other conduct not
included in (h)1 or 2 above.
(i) The Department may move from the midpoint of
the range, to an amount not greater than the maximum amount nor less than the
minimum amount in the range, on the basis of the following factors:
1. The compliance history of the violator;
i. No violations of the same effluent limitation
and discharge point at all in the two years immediately preceding the pending
violation shall result in a reduction equal to 25 percent of the midpoint.
ii. No serious or fewer than four lesser
violations of the same effluent limitation and discharge point in the two years
immediately preceding the pending violation shall result in a reduction equal to 10
percent reduction of the midpoint.
iii.
One isolated serious violation or four or more lesser violations of the same
effluent limitation and discharge point in the two years immediately preceding the
date of the pending violation shall result in an increase equal to 10 percent of the
midpoint.
iv. Any violation(s) which
caused a person to become or remain in significant noncompliance or two or more
isolated serious violations where such violations are of the same effluent
limitation and discharge point in the two years immediately preceding the date of
the pending violation shall result in a 25 percent increase from the
midpoint;
2. Where the
nature, timing and effectiveness of any measures taken by the violator to mitigate
the effects of the violation for which the penalty is being assessed results in
compliance within 30 days of receipt of the notice of violation from the
Department;
3. Any unusual or
extraordinary costs or impacts directly or indirectly imposed on the public or the
environment as a result of the violation;
4. Any impacts on the receiving water, including
stress upon the aquatic biota, or impairment of receiving water uses, such as for
recreational or drinking water supply, resulting from the violation; and
5. Other specific circumstances of the violator or
violation.
