N.J. Admin. Code § 7:14-8.5

Current through Register Vol. 56, No. 9, May 6, 2024

Section 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.

N.J. Admin. Code § 7:14-8.5

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< < Amended by R.1989 d.282, effective 6/5/1989.
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 6/17/1991.
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 8/5/1991.
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 4/6/1992.
See: 23 N.J.R. 2238(a) , 24 N.J.R. 1334(a) .
pH effluent ranges added.
Amended by R.1999 d.163, effective 5/17/1999.
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 5/19/2003.
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 8/6/2007.
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 ".