Current through Register Vol. 56, No. 18, September 16, 2024
(a) The Department may
assess a civil administrative penalty pursuant to this section of not more than $
50,000 for each violation of each provision of the Water Pollution Control Act and
for violations of any rule, water quality standards, effluent limitation,
administrative order or permit issued pursuant thereto. The Department shall assess
a minimum mandatory civil administrative penalty for violations which occur after
June 30, 1991 in an amount:
1. Not less than $
5,000 for each violation that causes a violator to be, or continue to be, a
significant noncomplier; or
2. Not less
than $ 1,000 for each serious violation.
(b) Each violation of any provision of the Water
Pollution Control Act or any rule, water quality standard, effluent limitation,
administrative order or permit issued pursuant thereto, 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. If a violator establishes, to the satisfaction of the Department, that a
single operational occurrence has resulted in the simultaneous violation of more
than one effluent limit, the Department may consider, for purposes of calculating
the mandatory civil administrative penalties to be assessed pursuant to (a) above,
the violation of interrelated effluent limits to be a single 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 pursuant to
7:14-8.6 through
7:14-8.12, the Department shall 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 civil administrative 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.
2. The civil administrative penalty shall be at
the midpoint of the range within the matrix in (f) below, unless adjusted pursuant
to (i) below.
(f) The matrix
of ranges of civil administrative penalties is as follows:
| CONDUCT | SERIOUSNESS |
| Major | Moderate | Minor |
| Major | $ 40,000-$ 50,000 | $ 30,000-$
40,000 | $ 15,000-$ 25,000 |
| Moderate | $ 30,000-$ 40,000 | $ 10,000-$
20,000 | $ 3,000-$ 7,000 |
| Minor | $ 15,000-$ 25,000 | $ 3,000-$
7,000 | $ 1,000-$ 2,500 |
(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 an
effluent limitation which 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; or
(2) By more than 100 percent for a nonhazardous
pollutant;
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% of the midpoint of the range
excluding the excursions specifically excepted by a NJPDES permit with continuous pH
monitoring; and
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 the New Jersey Underground Storage of Hazardous
Substances Act or violates any rule, water quality standards, effluent limitation,
administrative order or permit issued pursuant thereto; serious deviation shall
include, but not be limited to, those violations which 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.
iv. Any violation which seriously deviates from a
requirement of the Water Pollution Control Act or the New Jersey Underground Storage
of Hazardous Substances Act or any violation of any rule, water quality standard,
effluent limitation, administrative order or permit now or hereafter issued pursuant
thereto; serious deviation shall include, but not be limited to, those violations
which 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 nonhazardous
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
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, the New Jersey Underground
Storage of Hazardous Substances Act, or any violation of any rule, water quality
standard, effluent limitation, administrative order or permit now or hereafter
issued pursuant thereto; substantial deviation shall include, but not be limited to,
those violations which 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; or
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 nonhazardous
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 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, in its discretion, move
from the midpoint of the range to an amount no 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;
2. The number, frequency and
severity of the violation(s);
3. The
measures taken by the violator to mitigate the effects of the current violation or
to prevent future violations;
4. The
deterrent effect of the penalty;
5. The
cooperation of the violator in correcting the violation, remedying any environmental
damage caused by the violation and ensuring that the violation does not
reoccur;
6. Any unusual or extraordinary
costs or impacts directly or indirectly imposed on the public or the environment as
a result of the violation;
7. 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
8. Other specific circumstances of the violator or
violation.
