N.J. Admin. Code § 7:9D-4.4

Current through Register Vol. 56, No. 24, December 18, 2024

Section 7:9D-4.4 - Civil administrative penalties

(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.

N.J. Admin. Code § 7:9D-4.4

Amended by 50 N.J.R. 171(a), effective 1/2/2018