Current through Register Vol. 56, No. 18, September 16, 2024
(a) Each violation of the Toxic Catastrophe Prevention Act or any rule, consent agreement or administrative order issued pursuant thereto, shall constitute an additional, separate and distinct offense.
(b) If the violation is of a continuing nature, each day during which it continues constitutes an additional, separate and distinct offense.
(c) The Department shall determine the amount of the civil administrative penalty for the offenses described in Table III below on the basis of the category of offense, the frequency of the violation, the type of violation as minor (M) or non-minor (NM), and the applicable grace period if the violation is minor, as follows:
Click to view Table III.
(d) The Department may assess a civil administrative penalty for a violation of the Toxic Catastrophe Prevention Act and for violations of any rule, consent agreement or administrative order adopted or issued pursuant thereto, for which no penalty amount is specified under (c) above, according to the following:
1. The Department shall assess a penalty in an amount not to exceed the following:
i. $ 10,000 for the first offense;
ii. $ 20,000 for the second offense;
iii. $ 50,000 for the third and each subsequent offense.
2. The Department shall determine whether the violation is a minor violation and subject to a grace period or whether the violation is non-minor and not subject to a grace period and shall assess a penalty as follows:
i. If, pursuant to (e) below, the violation is comparable to a violation listed in (c) above, and the comparable violation in (c) above is minor, then the violation under this section is also minor, provided the criteria at N.J.A.C. 7:31-11.5(c)1 through 4 are also met. The minor violation shall be subject to the grace period set forth in (c) above for the comparable violation, and the penalty shall be assessed in the amount of the penalty for the comparable violation, in accordance with the procedures set forth at N.J.A.C. 7:31-11.5;
ii. If the violation is not comparable to a violation listed in (c) above and the violation meets all of the criteria at (d)2ii(1) through (3) below as well as the criteria at N.J.A.C. 7:31-11.5(c)1 through 4, then the violation under this section is minor. The minor violation shall be subject to a grace period of 30 days, and may be subject to a penalty to be assessed under (d)1 above, in accordance with the procedures set forth at N.J.A.C. 7:31-11.5.
(1) The violation poses minimal risk to the public health, safety and natural resources;
(2) The violation does not materially and substantially undermine or impair the goals of the regulatory program; and
(3) The activity or condition constituting the violation is capable of being corrected and compliance achieved within the time prescribed by the Department;
iii. If, pursuant to (e) below, the violation is comparable to a violation listed in (c) above, and the comparable violation in (c) above is non-minor, then the violation under this section is also non-minor and the penalty shall be assessed in the amount of the penalty for the comparable non-minor violation.
iv. If the violation is not comparable to a violation listed in (c) above and the violation does not meet the requirements of (d)2ii above, the violation is non-minor and the penalty shall be assessed pursuant to (d)1 above, and (g) below as appropriate.
(e) Comparability of a violation under (d) above with a violation listed in (c) above is based upon the nature of the violation (for example, a violation of recordkeeping, completeness, reporting completeness or performance of risk management program requirements) and the nature and extent of the extraordinarily hazardous accident risk likely to result from the type of violation.
(f) If the owner or operator has not committed the same offense within the three year period preceding the pending offense, the penalty for the pending offense will be assessed at the frequency of violation level of the prior offense. The Department may, in its discretion, treat an offense as a first offense solely for civil administrative penalty determination purposes if the violator has not committed the same offense in the five years immediately preceding the date of the pending offense.
(g) The Department may, in its discretion, adjust the amount of any penalty assessed for a non-minor violation pursuant to this section to assess a civil administrative penalty amount no greater than $ 10,000 for the first offense, $ 20,000 for the second offense and $ 50,000 for the third and each subsequent offense, based upon any or all of the following factors:
1. The nature of the violation;
2. The nature and extent of the extraordinarily hazardous accident risk;
3. The nature, timing and effectiveness of prevention measures to minimize extraordinarily hazardous accident risks in addition to those minimally required by applicable statute or rule;
4. The compliance history of the violator;
5. The number of times and the frequency with which the violation occurred;
6. The severity of the violation;
7. Any other mitigating, extenuating or aggravating circumstances; and/or
8. 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.
