N.J. Admin. Code § 7:10-3.6

Current through Register Vol. 56, No. 12, June 17, 2024

Section 7:10-3.6 - Civil administrative penalties for violation of the State Act-general

(a) The Department may assess a civil administrative penalty pursuant to this section of up to $ 25,000 for each violation of the State Act or any regulation, rule, permit, or order adopted or issued by the Department pursuant thereto.

(b) If the violation is of a continuing nature, each day during which the violation continues subsequent to receipt of an order to cease the violation shall constitute an additional, separate and distinct violation.

(c) To assess a civil administrative penalty pursuant to this section, the Department shall:

1. Identify the matrix in (f) below by determining the level of offense, that is, first, second, third or subsequent offense as defined in 7:10-1.3.

2. Identify the civil administrative base penalty within the matrix in (f) below by determining the seriousness of violation pursuant to (d) below and the type of water system pursuant to (e) below; and

3. The civil administrative penalty shall be the amount within the matrix in (f) below, unless adjusted pursuant to (g) below.

(d) The seriousness of the violation shall be determined as major, moderate or minor as set forth in (d)1 through 3 below:

1. Major seriousness shall apply to any violation that has caused or has the potential to cause serious harm to human health or which seriously deviates from the requirements of the State Act, or any regulation, rule, permit, or order adopted or issued pursuant thereto. Violations of major seriousness shall include, but not be limited to, violations 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. Violations of major seriousness shall include, but not be limited to:

i. Falsification of any statement, representation, or certification in any application, registration, record, or other document submitted or maintained, or falsification or tampering with any monitoring device or method required to be maintained under the State Act or any regulation, rule, permit, or order adopted or issued pursuant thereto;

ii. Failure to provide public notice of violations in accordance with 40 CFR 141.202;

iii. The refusal, inhibition or prohibition of immediate lawful entry and inspection of any premises, building, or place, except private residences, by any authorized Department representative;

iv. Failure to obtain a sample and analyze for any primary contaminant during a sample period as required by the Department pursuant to the State Act, or any regulation, rule, permit or order adopted or issued by the Department pursuant thereto so that no sample analysis at all has been obtained for a specific contaminant for the sample period;

v. Intentional MCL violation for those parameters that a water system is designed and/or operated to treat; and

vi. Constructing or operating, or commencing or proceeding to build, modify, install, replace, expand or operate a water system without the proper authorization or permit issued or imposed pursuant to the State Act, and, if applicable, a permit cannot subsequently be obtained without major modification.

2. Moderate seriousness shall apply to any violation which has caused or has the potential to cause substantial harm to human health or which substantially deviates from the requirements of the State Act, or any regulation, rule, permit, or order adopted or issued pursuant thereto. Violations of moderate seriousness shall include, but not be limited to, violations 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. Violations of moderate seriousness shall include, but not be limited to:

i. Failure to comply with any condition or provision of a permit issued pursuant to the State Act;

ii. Constructing or operating, or commencing or proceeding to build, modify, install, replace, expand or operate a water system without the proper authorization or permit issued or imposed pursuant to the State Act, and, if applicable, a permit is subsequently obtained with only minor modifications;

iii. Failure to institute corrective measures for MCL violations in accordance with 7:10-5.6; and

iv. Failure to provide public notice of violations in accordance with 40 CFR 141.203.

3. Minor seriousness shall apply to any other violation not included in (d)1 or 2 above. Violations of minor seriousness shall include, but not be limited to:

i. Failure to provide public notice for violations in accordance with 40 CFR 141.204;

ii. Failure to report in accordance with 7:10-5.4;

iii. Constructing or operating, or commencing or proceeding to build, modify, install, replace, expand or operate a water system without the proper authorization or permit issued or imposed pursuant to the State Act, and, if applicable, a permit is subsequently obtained without the need of any modifications.

(e) The type of water system shall be determined as very small, small, medium or large as follows:

1. A very small water system shall serve a population of 500 or fewer;

2. A small water system serves a population greater than 500 and fewer than or equal to 3,300;

3. A medium water system serves a population greater than 3,300 and fewer than or equal to 10,000; and

4. A large water system serves a population greater than 10,000.

(f) The matrices of civil administrative base penalties are as follows:

1. For a first offense, the matrix of civil administrative base penalties is as follows:

SERIOUSNESS OF THE VIOLATION
TYPE OF WATER SYSTEM	Minor	Moderate	Major
Very small	$ 250	$ 500	$ 1,000
Small	$ 500	$ 1,000	$ 2,000
Medium	$ 1,000	$ 2,000	$ 4,000
Large	$ 2,000	$ 4,000	$ 5,000

2. For a second offense, the matrix of civil administrative base penalties is as follows:

SERIOUSNESS OF THE VIOLATION
TYPE OF WATER SYSTEM	Minor	Moderate	Major
Very small	$ 5,000	$ 5,500	$ 6,000
Small	$ 5,000	$ 6,000	$ 7,000
Medium	$ 5,000	$ 6,500	$ 8,000
Large	$ 5,000	$ 7,500	$ 10,000

3. For a third or subsequent offense, the matrix of civil administrative base penalties is as follows:

SERIOUSNESS OF THE VIOLATION
TYPE OF WATER SYSTEM	Minor	Moderate	Major
Very small	$ 5,000	$ 7,500	$ 10,000
Small	$ 6,000	$ 9,000	$ 12,000
Medium	$ 7,000	$ 11,000	$ 15,000
Large	$ 8,000	$ 15,000	$ 22,000

(g) The Department may, at its discretion, adjust the amount of any penalty assessed pursuant to (f) above based upon any or all of the factors listed in (g)1 through 5 below. No such factor constitutes a defense to any violation. In no case shall the assessed penalty be more than $ 25,000 per day for each offense.

1. The frequency with which any violation of the State Act, rules, permit or order occurred;

2. The timely implementation by the violator of measures leading to compliance;

3. The nature, timing and effectiveness of measures taken to mitigate the effects of the violation or prevent future similar violations, and the extent to which such measures are in addition to those required under an applicable statute or rule;

4. The deterrent effect of the penalty; and/or

5. Any other mitigating, extenuating, or aggravating circumstances.

N.J. Admin. Code § 7:10-3.6

Amended by R.2000 d.354, effective 8/21/2000.
See: 31 N.J.R. 2717(b), 32 N.J.R. 3106(a).
In (d)1iv, inserted "primary" preceding "contaminant".
Amended by R.2011 d.039, effective 2/7/2011.
See: 42 N.J.R. 17(a), 42 N.J.R. 642(a), 43 N.J.R. 289(a).
Rewrote (a); in (d)1ii, substituted "141.202" for "141.32(a)(1)(iii)"; in (d)2ii, deleted "and" from the end; in (d)2iii, substituted "7:10-5.6; and" for "7:10-5.7."; added (d)2iv; in (d)3i, substituted "141.204" for "141.32(b)"; and rewrote the introductory paragraph of (g).