Current through Register Vol. 56, No. 18, September 16, 2024
(a) To assess a civil
administrative penalty or any other costs allowed under the Water Pollution Control
Act, the New Jersey Underground Storage of Hazardous Substances Act, and the Water
Supply and Wastewater Operators' Licensing Act, the Department shall notify the
violator by certified mail (return receipt requested) or by personal service. This
Notice of Civil Administrative Penalty Assessment shall:
1. Identify the section of the statute, rule,
water quality standards, effluent limitation, administrative order or permit
violated;
2. Concisely state the facts
which constitute the violation;
3.
Specify the amount of the civil administrative penalty to be imposed and give notice
of other allowable costs to be sought; and
4. Advise the violator of the right to request an
adjudicatory hearing pursuant to the procedures in
7:14-8.4.
(b) Payment of the civil administrative penalty is
due upon receipt by the violator of the Department's Final Order in a contested
case, or when a Notice of Civil Administrative Penalty Assessment becomes a Final
Order, as follows:
1. If no hearing is requested
pursuant to N.J.A.C. 7:14-8.4, a Notice of Civil Administrative Penalty Assessment
becomes a Final Order and is deemed received on the 21st day following receipt of
the Notice of Civil Administrative Penalty Assessment by the violator;
2. If the Department denies the hearing request, a
Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt
of notice of such denial; or
3. If the
Department conducts an adjudicatory hearing, a Notice of Civil Administrative
Penalty Assessment becomes a Final Order upon receipt by the violator of a Final
Order in a contested case.
(c) In addition to the amount of the civil
administrative penalty that is due and owing pursuant to (b) above, the violator
shall also pay to the Department the interest on the amount of the penalty, at the
rate established by the New Jersey Supreme Court for interest rates on judgments as
set forth in the Rules Governing the Courts of the State of New Jersey, as follows:
1. Interest shall accrue on the amount of the
civil administrative penalty due and owing beginning on the 30th day after the date
on which the penalty was due and owing and continuing until the civil administrative
penalty is paid in full with interest if:
i. A
violator does not pay a civil administrative penalty imposed pursuant to a final
order; or
ii. A violator fails to make a
civil administrative penalty payment pursuant to a payment schedule entered into
with the Department; and
2.
Interest, at the rate set forth in (c)1 above, shall accrue on the unpaid amount of
a civil administrative penalty which is contested as a contested case under
52:14B-1 et seq., or appealed to the
Appellate Division of the Superior Court, and upheld in full or in part, from the
date the violator posted financial assurance under
7:14-8.4(a)9 or, in
the case of a local agency, from the date the Department receives a local agency's
hearing request, until the violator pays in full the civil administrative penalty
and all interest accrued thereon.
(d) A civil administrative penalty and any
allowable cost imposed pursuant to a final order shall constitute a debt of the
violator or discharger. The Department may docket the penalty with the clerk of the
Superior Court. The penalty, as docketed, shall have the same standing as any
judgment docketed pursuant to
2A:16-1, except that:
1. No lien shall attach to the property of a local
agency; and
2. No lien shall attach to
the real property of a violator if the violator posts a refundable bond or other
security with the Commissioner pursuant to an appeal of a final order to the
Appellate Division of the Superior Court.
(e) The Department may settle any civil
administrative penalty assessed pursuant to this subchapter according to the factors
identified in (f) below as follows:
1. In cases
where the violator is a local agency which violates an administrative consent order,
the Department may settle a civil administrative penalty as follows:
i. The Department may reduce the civil
administrative penalty up to 50 percent, provided that the penalty as reduced is not
less than any applicable minimum amount set forth in
7:14-8.5(a) or 8.9(e);
and
ii. The Department may not reduce
the amount of any component of a civil administrative penalty which represents the
economic benefit gained by the violator from the violation;
2. Except as provided in (e)1 above, in the case
of a violator who is a local agency which violates something other than an
administrative consent order and then enters into an administrative consent order
with the Department, which requires the local agency to take prescribed measures to
comply with its permit, the Department shall have full discretion to settle the
amount of the civil administrative penalty assessed or due for violations occurring
during a period up to 24 months preceding the effective date of the administrative
consent order, except that the Department shall neither:
i. Reduce the amount of the civil administrative
penalty less than the minimum amount, if applicable, prescribed in
7:14-8.5(a) or 8.9(e);
nor
ii. Reduce the amount of any
component of a civil administrative penalty which represents the economic benefit
gained by the violator from the violation.
3. In the case of all other violators:
i. The Department may reduce the civil
administrative penalty up to 50 percent, provided that the penalty as reduced is not
less than any applicable minimum amount set forth in
7:14-8.5(a) or 8.9(e);
and
ii. The Department may not reduce
the amount of any component of a civil administrative penalty which represents the
economic benefit gained by the violator from the violation.
(f) In settling a civil administrative
penalty, the Department may consider the following:
1. Mitigating or extenuating circumstances not
considered in the notice of civil administrative penalty assessment;
2. The implementation by the violator of pollution
prevention and/or abatement measures in addition to those minimally required by
applicable statute or rule;
3. The
implementation by the violator of measures to clean up, reverse or repair
environmental damage previously caused by the violation;
4. The full payment by the violator of a specified
part of the civil administrative penalty assessed if made within a time period
established by the Department in an administrative order and/or a notice of civil
administrative penalty assessment and provided that the violator waives the right to
request an adjudicatory hearing on the civil administrative penalty; or
5. Any other terms or conditions acceptable to the
Department.
(g) In its
discretion, the Department may enter into an agreement with a violator, in which the
Department agrees to accept payment of a civil administrative penalty in
installments over time. Such an agreement shall be in writing. The Department shall
not enter into any such agreement if payment in full is due more than 90 days after
execution of the agreement unless:
1. The violator
is a local agency; or
2. The violator
posts financial assurance with the Department upon execution of the agreement
pursuant to one of the financial assurance mechanisms in Appendix A or in another
form the Department individually approves in writing for this purpose. The financial
assurance shall be in an amount that the Department reasonably determines will tend
to ensure good faith compliance with the agreement. In determining the amount, the
Department may consider any or all of the following factors:
i. The amount of the penalty;
ii. The amount and frequency of the installment
payments due under the agreement;
iii.
The duration of the agreement;
iv. Other
remedies, aside from drawing upon the financial assurance, that the Department may
exercise under the agreement if an installment payment is not timely made or if some
other requirement of the agreement is not satisfied, and the extent to which such
other remedies will tend to ensure compliance with the agreement;
v. The violator's history of compliance, including
without limitation its history of compliance with other schedules for the payment of
penalties assessed by the Department;
vi. Expenditures that the violator has made or has
agreed to make for purposes of pollution control and/or pollution prevention;
and
vii. Other specific circumstances of
the violator relating to the tendency of the financial assurance to ensure
compliance with the agreement or indicating the extent to which financial assurance
is necessary to ensure compliance with the agreement.
(h) Any violator that is not a local
agency which enters into an administrative consent order with the Department that
includes a compliance schedule shall post financial assurance in the full amount of
the cost of fully complying with all of the terms and conditions imposed by the
Department pursuant to one of the financial assurance mechanisms in Appendix A,
incorporated herein by reference, or in another form the Department individually
approves in writing for this purpose.
(i) Except as provided in (i)1 below, a violator
may be entitled to an affirmative defense to liability for a violation of an
effluent limitation occurring as a result of an upset, an anticipated or
unanticipated bypass, a testing or laboratory error, or a permitted groundwater
remedial action, only if, in the determination of the Department, the violator has
satisfied the provisions of this section.
1. A
violator shall not be entitled to an affirmative defense based on an alleged upset,
an anticipated or unanticipated bypass, a testing or laboratory error to the extent
that the violation is caused by operational error, improperly designed treatment
facilities, inadequate treatment facilities, lack of preventive maintenance, or
careless or improper operation or maintenance.
2. A violator shall be entitled to an affirmative
defense only if, in the determination of the Department, the violator satisfies the
following:
i. The violation occurred as a result of
an upset, an anticipated or unanticipated bypass, a testing or laboratory error, or
a permitted groundwater remedial action;
ii. The violator complied with all of the
requirements in 7:14A-6.10;
iii. In the case of a permitted groundwater
remedial action, the violation is a first violation of that permit limitation and
the violation could not reasonably have been anticipated by the permittee. No such
affirmative defense shall be granted by the Department if:
(1) The violation was the result of a negligent
act or omission of the permittee;
(2)
The equipment used in the remedial action had not been properly maintained or was
not being properly operated at the time of the violation and the failure to properly
maintain or operate the equipment was the proximate cause of the
exceedance;
(3) The permittee fails to
provide timely notice and information as required by law rule or regulation to the
Department;
(4) The permittee failed to
take immediate measures, upon first becoming aware of the violation, to terminate
the violation and to abate any adverse consequences therefrom; or
(5) The permittee fails to file with the
Department a remedial action protocol setting forth the procedure to be followed to
prevent a recurrence of the exceedance;
iv. A violator asserting a testing or laboratory
error as an affirmative defense shall also have the burden to demonstrate that a
violation involving the exceedance of an effluent limitation was the result of
unanticipated test interferences, sample contamination, analytical defects, or
procedural deficiencies in sampling or other similar circumstances beyond the
violator's control;
v. In the case of an
upset or unanticipated bypass, the violator complied with any remedial measures
required by the Department; and
vi. In
the case of an anticipated bypass, the violator obtained prior written approval from
the Department and complied with all conditions of the approval, including any
remedial measures required by the Department.
3. If the Department determines that a violator is
entitled to an affirmative defense for an exceedance of an effluent limitation
caused by an upset, an anticipated or unanticipated bypass, a testing or laboratory
error or a permitted groundwater remedial action, the Department shall not consider
the exceedance a violation and shall not assess a civil administrative
penalty.
4. If the Department determines
that a violator is not entitled to an affirmative defense for an exceedance of an
effluent limitation caused by an upset, an anticipated or unanticipated bypass, a
testing or laboratory error, or a permitted groundwater remedial action, the
Department shall consider the exceedance a violation.
