Current through Register Vol. 56, No. 24, December 18, 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
N.J.A.C.
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 N.J.S.A. 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
N.J.A.C.
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
N.J.S.A. 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
N.J.A.C.
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 N.J.A.C. 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
N.J.A.C.
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
N.J.A.C.
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.
