N.J. Admin. Code § 7:14-8.5 - Civil administrative penalty determination
(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.
Notes
< < Amended by R.1989 d.282, effective
See: 21 N.J.R. 373(a) , 21 N.J.R. 1530(a) .
(d)-(f) recodified as (e)-(g), new (c) added regarding each day continuing constituting separation violation.
Amended by R.1991 d.307, effective
See: 22 N.J.R. 2870(a) , 23 N.J.R. 1926(a) .
Added (e)1iii and (e)2iii.
Amended by R.1991 d.378, effective
See: 23 N.J.R. 1089(a) , 23 N.J.R. 2366(a) .
In (a), added penalty amounts for violations occurring after June 30, 1991.
In (b), added "If a violator establishes . . . to be a single violation".
In (d), substituted old text for new text with retention of chart. Changed the $ 6,000 penalty assessments in the chart to $ 7,000.
Recodified existing (e) as (g) with substantial additions.
Deleted (g)1i; recodified existing (g)1ii as i.
Added (g)1ii and (g)2iii.
In (g)2i, added ", other than a violation of an effluent limitation identified in (g)2ii below,".
In (g)2ii(1), changed "26" to "20".
In (g)2ii(2), changed "51" to "40".
In (g)3i, added ", other than a violation of an effluent limitation identified in (g)3ii or iii below,".
In (g)3ii(1), changed "up to 25" to "less than 20".
In (g)3ii(2), changed "up to 50" to "less than 40".
Recodified existing (f) and (g) as (h) and (i).
In (i), changed "adjust the amount determined pursuant to (d) above to assess a civil administrative penalty in" to "move from the midpoint of the range to". Substituted (i)5 with new text and added (i)6, 7 and 8.
Amended by R.1992 d.145, effective
See: 23 N.J.R. 2238(a) , 24 N.J.R. 1334(a) .
pH effluent ranges added.
Amended by R.1999 d.163, effective
See: 31 N.J.R. 508(b) , 31 N.J.R. 1314(b) .
In (g), deleted a former second sentence in the introductory paragraph.
Amended by R.2003 d.198, effective
See: 34 N.J.R. 3703(a) , 35 N.J.R. 2319(a) .
In (a) and (b), deleted references to the New Jersey Underground Storage of Hazardous Substances Act following references to the Water Pollution Control Act.
Amended by R.2007 d.234, effective
See: 38 N.J.R. 2919(a) , 39 N.J.R. 3298(a) .
In (d), inserted ", including any applicable grace period in accordance with N.J.A.C. 7:14-8.18 ".
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