Current through Register Vol. 56, No. 18, September 16, 2024
(a) The Department
may, in accordance with (d) below, assess a civil administrative penalty of not
more than $ 5,000 for each violation directly related to the construction of a
well, and a civil administrative penalty of not more than $ 1,000 for each
violation that is not construction-related, against any person that violates
any provision of the Act or any provision of any rule, permit, license, or
administrative order promulgated or issued pursuant thereto.
(b) The authority to assess a civil
administrative penalty pursuant to (a) above is in addition to any other
remedies available to the Department pursuant to law.
(c) The Department may consider each
violation of any provision of the Act, or any rule, permit, license, or
administrative order issued pursuant thereto, as a separate and distinct
violation. Each day during which a violation continues shall constitute an
additional, separate, and distinct offense subjecting the violator to daily
penalties in accordance with this subchapter.
(d) The Department may assess a civil
administrative penalty for the following non-construction related violations at
the mid-point of the following stated ranges unless adjusted pursuant to (i)
below:
1. Failure to submit a well record or
well decommissioning report to the Department within 90 days of completion of
the well or well decommissioning: $ 400.00 through $ 1,000;
2. Failure to display the name of the person
or well drilling company on the equipment used for the installation, removal,
maintenance, alteration, or repair of the well or the pump: $ 400.00 through $
1,000;
3. Failure to respond to
request for information from the Department in accordance with
N.J.A.C. 7:9D-4.2
: $
400.00 through $ 1,000;
4. Failure
to keep a copy of the well permit or well decommissioning plan onsite at all
times for inspection by any authorized local, county, or State official: $
250.00 through $ 750.00;
5. Failure
to provide a New Jersey license of the proper class upon request during a work
site inspection by any authorized local, county, or State official: $ 250.00
through $ 750.00;
6. Failure to
provide a copy of the permit to the property owner: $ 250.00 through $
750.00;
7. Failure to cancel a well
permit within 90 days of the permit's expiration date: $ 100.00 through $
500.00; or
8. Failure to notify the
Department in writing of a change in mailing address or telephone number within
14 calendar days of the change: $ 100.00 through $ 500.00.
(e) All violations, except those listed in
(d) above, are construction-related violations. The Department may assess a
civil administrative penalty for all violations, other than those listed at (d)
above, as follows:
1. To assess a penalty for
a construction-related violation the Department shall:
i. Determine the seriousness of the violation
pursuant to (f) below;
ii.
Determine the conduct of the violator pursuant to (g) below; and
iii. Use the information in (e)1i and ii
above to identify the civil administrative penalty range within the matrix in
(e)2 below.
2. The civil
administrative penalty for each construction-related violation shall be
assessed at the midpoint of the range within the following matrix, unless
adjusted pursuant to (i) below:
SERIOUSNESS
| Major |
Moderate |
Minor |
| Major |
$ 4,000 -$ 5,000 |
$ 2,750 - $ 3,750 |
$ 2,000 - $ 2,500 |
| CONDUCT |
Moderate |
$ 2,750 - $ 3,750 |
$ 2,000 - $ 2,500 |
$ 1,250 - $ 1,750 |
| Minor |
$ 2,000 - $ 2,500 |
$ 1,250 - $ 1,750 |
$ 500.00 - $ 1,000 |
(f) The
Department shall determine the seriousness of the violation as major, moderate,
or minor as follows:
1. Major seriousness
shall include any violation that has caused or has the potential to cause
serious harm to public health, safety, welfare, or the environment or which
seriously deviates from the requirements of the Act, or any rule, permit,
license, or order adopted or issued pursuant thereto. Violations of major
seriousness also include those which are in complete contravention of such
requirements or, if some of the requirements are met, which severely impair or
undermine the operation or intent of the requirements, including, but not
limited to:
i. Falsifying any statement,
representation, or certification in any application, record, report, or other
document submitted or maintained, under the Act, or any rule, permit, license,
or order adopted or issued pursuant thereto;
ii. Constructing, commencing, or proceeding
to drill, build, modify, install, re-designate, maintain, replace, repair, or
decommission a well, pump, or appurtenances without a permit, approved
decommissioning plan pursuant to N.J.A.C.
7:9D-3.1(j)
, or a
proper license;
iii. Refusing,
inhibiting, prohibiting, or otherwise preventing immediate lawful entry and
inspection of any premises, building, property, facility, vessel, or place, by
any authorized local, county, or State official; or
iv. Constructing, commencing, or proceeding
to build, modify, install, maintain, re-designate, replace, repair, destroy, or
decommission a well, pump, or appurtenances in violation of this chapter or a
permit condition imposed pursuant to this chapter, except as provided at (f)2i
below.
2. Moderate
seriousness shall include any violation, which has caused or has the potential
to cause substantial harm to public health, safety, welfare, or the environment
or which substantially deviates from the requirements of the Act, or any rule,
permit, license, or order adopted or issued pursuant thereto. Violations of
moderate seriousness also include those which are in substantial contravention
of such requirements or, if some of the requirements are met, which
substantially impair or undermine the operation or intent of the requirements,
including, but not limited to:
i. Failure to
notify the Department prior to drilling, if required by the permit;
and
ii. The installation, repair,
removal, replacement, or modification of any pump or appurtenance in violation
of this chapter;
3.
Minor seriousness shall include:
i. Any
violation not included in (f)1 or 2 above; and
ii. The inadvertent submission of inaccurate
or incomplete information to the Department that is corrected within the
timeframe established by the Department.
(g) The Department shall determine the
conduct of the violator as major, moderate, or minor as follows:
1. Major conduct shall include any
intentional, deliberate, purposeful, knowing, or willful act or omission by the
violator;
2. Moderate conduct shall
include any unintentional but foreseeable act or omission by the violator;
and
3. Minor conduct shall include
any other conduct not identified in (g)1 or 2 above.
(h) When the Department determines that the
violator has gained an economic benefit from a violation, the Department may,
in addition to any other civil administrative penalty assessed pursuant to this
subchapter, include as part of a civil administrative penalty established under
(d) or (e) above, the economic benefit (in dollars) which the violator has
realized as a result of not complying, or by delaying compliance, with the
requirements of the Act, or any rule, license, permit, or administrative order
issued pursuant thereto.
1. Economic benefit
shall include:
i. The amount of savings
realized from avoided capital or non-capital costs resulting from the
violation;
ii. The return earned or
that may be earned on the amount of the avoided costs;
iii. Any benefits accruing to the violator as
a result of a competitive market advantage enjoyed by reason of the violation;
and
iv. Any other economic benefits
resulting from the violation.
2. The Department may consider the following
factors in determining economic benefit:
i.
The amount of capital investments required, and whether they are one-time or
recurring;
ii. The amount of
one-time non-depreciable expenditures;
iii. The amount of annual expenses;
iv. The useful life of capital;
v. Applicable tax, inflation, and discount
rates;
vi. The amount of low
interest financing, the low interest rate, and the corporate debt rate;
and
vii. Any other factors relevant
to economic benefit.
3.
If the total economic benefit was derived from more than one violation, the
total economic benefit amount may be apportioned among the violations from
which it was derived, so as to increase each civil administrative penalty
assessment to not greater than $ 5,000 per day for each construction related
violation and not greater than $ 1,000 per day for each non-construction
related violation.
(i)
The civil administrative penalty shall be established at the mid-point of the
ranges set forth at (d) and (e) above, unless adjusted by the Department in its
discretion to an amount no greater than the top nor less than the bottom of
each applicable range, on the basis of the following factors:
1. The compliance history of the
violator;
2. The type, number,
frequency, extent, and severity of the violations;
3. The nature, timing, and effectiveness of
any measures taken by the violator prior to the issuance of an order to
mitigate the effects of the violation for which the penalty is being
assessed;
4. The nature, timing,
and effectiveness of any measures taken by the violator prior to the issuance
of an order to prevent future similar violations;
5. Any unusual or extraordinary costs or
impacts directly or indirectly imposed on the public or the environment as a
result of the violation;
6. Any
economic benefit realized by the violator;
7. The deterrent effect of the
penalty;
8. The cooperation of the
violator prior to the issuance of an order in correcting the violation,
remedying any environmental damage caused by the violation and ensuring that
the violation does not reoccur;
9.
The potential or actual harm to the public health, safety, or the environment
resulting from the violation; and
10. Other specific circumstances of the
violator or violation determined on an individual case basis.
(j) The Department may settle any
civil administrative penalty assessed pursuant to this section according to the
following factors:
1. Mitigating or
extenuating circumstances not previously considered in the notice of civil
administrative penalty assessment;
2. The timely implementation by the violator
of measures leading to compliance not previously considered in the penalty
assessment;
3. The nature, timing
and effectiveness of measures taken to mitigate the effects of the violation or
prevent future similar violations not previously considered in the penalty
assessment;
4. The compliance
history of the violator not previously considered in the penalty
assessment;
5. The deterrent effect
of the penalty not previously considered in the penalty assessment;
and/or
6. Any other terms or
conditions acceptable to the Department.
