N.J. Admin. Code § 7:14-8.3

Current through Register Vol. 56, No. 11, June 3, 2024

Section 7:14-8.3 - Procedures for assessment, payment and settlement of civil administrative penalties, and affirmative defenses

(a) To assess a civil administrative penalty or any other costs allowed under the Water Pollution Control Act, the New Jersey Underground Storage of Hazardous Substances Act, and the Water Supply and Wastewater Operators' Licensing Act, the Department shall notify the violator by certified mail (return receipt requested) or by personal service. This Notice of Civil Administrative Penalty Assessment shall:

1. Identify the section of the statute, rule, water quality standards, effluent limitation, administrative order or permit violated;

2. Concisely state the facts which constitute the violation;

3. Specify the amount of the civil administrative penalty to be imposed and give notice of other allowable costs to be sought; and

4. Advise the violator of the right to request an adjudicatory hearing pursuant to the procedures in 7:14-8.4.

(b) Payment of the civil administrative penalty is due upon receipt by the violator of the Department's Final Order in a contested case, or when a Notice of Civil Administrative Penalty Assessment becomes a Final Order, as follows:

1. If no hearing is requested pursuant to N.J.A.C. 7:14-8.4, a Notice of Civil Administrative Penalty Assessment becomes a Final Order and is deemed received on the 21st day following receipt of the Notice of Civil Administrative Penalty Assessment by the violator;

2. If the Department denies the hearing request, a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt of notice of such denial; or

3. If the Department conducts an adjudicatory hearing, a Notice of Civil Administrative Penalty Assessment becomes a Final Order upon receipt by the violator of a Final Order in a contested case.

(c) In addition to the amount of the civil administrative penalty that is due and owing pursuant to (b) above, the violator shall also pay to the Department the interest on the amount of the penalty, at the rate established by the New Jersey Supreme Court for interest rates on judgments as set forth in the Rules Governing the Courts of the State of New Jersey, as follows:

1. Interest shall accrue on the amount of the civil administrative penalty due and owing beginning on the 30th day after the date on which the penalty was due and owing and continuing until the civil administrative penalty is paid in full with interest if:

i. A violator does not pay a civil administrative penalty imposed pursuant to a final order; or

ii. A violator fails to make a civil administrative penalty payment pursuant to a payment schedule entered into with the Department; and

2. Interest, at the rate set forth in (c)1 above, shall accrue on the unpaid amount of a civil administrative penalty which is contested as a contested case under 52:14B-1 et seq., or appealed to the Appellate Division of the Superior Court, and upheld in full or in part, from the date the violator posted financial assurance under 7:14-8.4(a)9 or, in the case of a local agency, from the date the Department receives a local agency's hearing request, until the violator pays in full the civil administrative penalty and all interest accrued thereon.

(d) A civil administrative penalty and any allowable cost imposed pursuant to a final order shall constitute a debt of the violator or discharger. The Department may docket the penalty with the clerk of the Superior Court. The penalty, as docketed, shall have the same standing as any judgment docketed pursuant to 2A:16-1, except that:

1. No lien shall attach to the property of a local agency; and

2. No lien shall attach to the real property of a violator if the violator posts a refundable bond or other security with the Commissioner pursuant to an appeal of a final order to the Appellate Division of the Superior Court.

(e) The Department may settle any civil administrative penalty assessed pursuant to this subchapter according to the factors identified in (f) below as follows:

1. In cases where the violator is a local agency which violates an administrative consent order, the Department may settle a civil administrative penalty as follows:

i. The Department may reduce the civil administrative penalty up to 50 percent, provided that the penalty as reduced is not less than any applicable minimum amount set forth in 7:14-8.5(a) or 8.9(e); and

ii. The Department may not reduce the amount of any component of a civil administrative penalty which represents the economic benefit gained by the violator from the violation;

2. Except as provided in (e)1 above, in the case of a violator who is a local agency which violates something other than an administrative consent order and then enters into an administrative consent order with the Department, which requires the local agency to take prescribed measures to comply with its permit, the Department shall have full discretion to settle the amount of the civil administrative penalty assessed or due for violations occurring during a period up to 24 months preceding the effective date of the administrative consent order, except that the Department shall neither:

i. Reduce the amount of the civil administrative penalty less than the minimum amount, if applicable, prescribed in 7:14-8.5(a) or 8.9(e); nor

ii. Reduce the amount of any component of a civil administrative penalty which represents the economic benefit gained by the violator from the violation.

3. In the case of all other violators:

ii. The Department may not reduce the amount of any component of a civil administrative penalty which represents the economic benefit gained by the violator from the violation.

(f) In settling a civil administrative penalty, the Department may consider the following:

1. Mitigating or extenuating circumstances not considered in the notice of civil administrative penalty assessment;

2. The implementation by the violator of pollution prevention and/or abatement measures in addition to those minimally required by applicable statute or rule;

3. The implementation by the violator of measures to clean up, reverse or repair environmental damage previously caused by the violation;

4. The full payment by the violator of a specified part of the civil administrative penalty assessed if made within a time period established by the Department in an administrative order and/or a notice of civil administrative penalty assessment and provided that the violator waives the right to request an adjudicatory hearing on the civil administrative penalty; or

5. Any other terms or conditions acceptable to the Department.

(g) In its discretion, the Department may enter into an agreement with a violator, in which the Department agrees to accept payment of a civil administrative penalty in installments over time. Such an agreement shall be in writing. The Department shall not enter into any such agreement if payment in full is due more than 90 days after execution of the agreement unless:

1. The violator is a local agency; or

2. The violator posts financial assurance with the Department upon execution of the agreement pursuant to one of the financial assurance mechanisms in Appendix A or in another form the Department individually approves in writing for this purpose. The financial assurance shall be in an amount that the Department reasonably determines will tend to ensure good faith compliance with the agreement. In determining the amount, the Department may consider any or all of the following factors:

i. The amount of the penalty;

ii. The amount and frequency of the installment payments due under the agreement;

iii. The duration of the agreement;

iv. Other remedies, aside from drawing upon the financial assurance, that the Department may exercise under the agreement if an installment payment is not timely made or if some other requirement of the agreement is not satisfied, and the extent to which such other remedies will tend to ensure compliance with the agreement;

v. The violator's history of compliance, including without limitation its history of compliance with other schedules for the payment of penalties assessed by the Department;

vi. Expenditures that the violator has made or has agreed to make for purposes of pollution control and/or pollution prevention; and

vii. Other specific circumstances of the violator relating to the tendency of the financial assurance to ensure compliance with the agreement or indicating the extent to which financial assurance is necessary to ensure compliance with the agreement.

(h) Any violator that is not a local agency which enters into an administrative consent order with the Department that includes a compliance schedule shall post financial assurance in the full amount of the cost of fully complying with all of the terms and conditions imposed by the Department pursuant to one of the financial assurance mechanisms in Appendix A, incorporated herein by reference, or in another form the Department individually approves in writing for this purpose.

(i) Except as provided in (i)1 below, a violator may be entitled to an affirmative defense to liability for a violation of an effluent limitation occurring as a result of an upset, an anticipated or unanticipated bypass, a testing or laboratory error, or a permitted groundwater remedial action, only if, in the determination of the Department, the violator has satisfied the provisions of this section.

1. A violator shall not be entitled to an affirmative defense based on an alleged upset, an anticipated or unanticipated bypass, a testing or laboratory error to the extent that the violation is caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation or maintenance.

2. A violator shall be entitled to an affirmative defense only if, in the determination of the Department, the violator satisfies the following:

i. The violation occurred as a result of an upset, an anticipated or unanticipated bypass, a testing or laboratory error, or a permitted groundwater remedial action;

ii. The violator complied with all of the requirements in 7:14A-6.10;

iii. In the case of a permitted groundwater remedial action, the violation is a first violation of that permit limitation and the violation could not reasonably have been anticipated by the permittee. No such affirmative defense shall be granted by the Department if:

(1) The violation was the result of a negligent act or omission of the permittee;

(2) The equipment used in the remedial action had not been properly maintained or was not being properly operated at the time of the violation and the failure to properly maintain or operate the equipment was the proximate cause of the exceedance;

(3) The permittee fails to provide timely notice and information as required by law rule or regulation to the Department;

(4) The permittee failed to take immediate measures, upon first becoming aware of the violation, to terminate the violation and to abate any adverse consequences therefrom; or

(5) The permittee fails to file with the Department a remedial action protocol setting forth the procedure to be followed to prevent a recurrence of the exceedance;

iv. A violator asserting a testing or laboratory error as an affirmative defense shall also have the burden to demonstrate that a violation involving the exceedance of an effluent limitation was the result of unanticipated test interferences, sample contamination, analytical defects, or procedural deficiencies in sampling or other similar circumstances beyond the violator's control;

v. In the case of an upset or unanticipated bypass, the violator complied with any remedial measures required by the Department; and

vi. In the case of an anticipated bypass, the violator obtained prior written approval from the Department and complied with all conditions of the approval, including any remedial measures required by the Department.

3. If the Department determines that a violator is entitled to an affirmative defense for an exceedance of an effluent limitation caused by an upset, an anticipated or unanticipated bypass, a testing or laboratory error or a permitted groundwater remedial action, the Department shall not consider the exceedance a violation and shall not assess a civil administrative penalty.

4. If the Department determines that a violator is not entitled to an affirmative defense for an exceedance of an effluent limitation caused by an upset, an anticipated or unanticipated bypass, a testing or laboratory error, or a permitted groundwater remedial action, the Department shall consider the exceedance a violation.

N.J. Admin. Code § 7:14-8.3

Amended by R.1989 d.282, effective 6/5/1989.
See: 21 New Jersey Register 373(a), 21 New Jersey Register 1530(a).
Added (c).
Amended by R.1991 d.378, effective 8/5/1991.
See: 23 New Jersey Register 1089(a), 23 New Jersey Register 2366(a).
Added ", and affirmative defenses" in heading. In (b)1, added "and is deemed received". Added (c), (d), (g), (h), (i). Recodified existing (c) as (e) with substantial additions. Reconstructed new (f) from former (c).
Administrative correction to (i)2iii.
See: 24 New Jersey Register 2448(a).
Amended by R.1994 d.277, effective 6/6/1994.
See: 25 New Jersey Register 5395(a), 26 New Jersey Register 2461(a).
Amended by R.1995 d.162, effective 3/20/1995.
See: 26 New Jersey Register 4912(a), 27 New Jersey Register 1265(a).
Amended by R.1997 d.106, effective 5/5/1997.
See: 28 New Jersey Register 720(a), 28 New Jersey Register 2779(a), 28 New Jersey Register 3040(a), 28 New Jersey Register 3494(a), 28 New Jersey Register 4697(a), 29 New Jersey Register 1691(c).
In (h), amended Appendix reference.
Amended by R.1999 d.163, effective 5/17/1999.
See: 31 New Jersey Register 508(b), 31 New Jersey Register 1314(b).
In (a), inserted "or any other costs allowed" following "penalty" in the introductory paragraph, and inserted "and give notice of other allowable costs to be sought" following "imposed" in 3; in (d), inserted "and any allowable cost" following "penalty" in the introductory paragraph; in (g)2 and (h), substituted references to Appendix A for references to Appendix D; and rewrote (i).