N.J. Admin. Code § 8:59-8.2

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

Section 8:59-8.2 - Civil administrative penalty

(a) The Commissioner of the Department is authorized pursuant to 34:5A-31(a)(3) and (d) to impose a civil administrative penalty of not more than $ 2,500 for each violation and additional penalties of not more than $ 1,000 for each day during which a violation continues after receipt of an order from the Commissioner to cease the violation.

(b) The penalty that may be assessed for a violation is to be determined by application of factors indicative of the seriousness and type of the violation, as set forth below.

1. Seriousness:

i. Within the Commissioner's discretion, significant violations shall include, but not be limited to:

(1) Filing by a public employer of false information on the Right to Know survey;

(2) (Reserved)

(3) Failure by a public employer to supply information requested by a county health department, county clerk, or designated county lead agency, local police department, or local fire department concerning the Right to Know survey.

ii. Within the Commissioner's discretion, major violations shall include, but not be limited to:

(1) Failure by a public employer to return a completed Right to Know survey to the Department within the deadline set forth in N.J.A.C. 8:59-2;

(2) Failure by a public employer to convey copies of the Right to Know survey to the county health department, county clerk, or designated county lead agency, local fire department, or local police department;

(3) Omission by a public employer from the Right to Know survey of more than five percent of the hazardous substances present at the public employer's facility;

(4) Failure to make a good faith effort to obtain the chemical names and CAS numbers of the components of a product, which are unknown to the employer, from the manufacturer or supplier of the product;

(5) Failure to supply the chemical name or common name and CAS number of a substance claimed to be a trade secret on the trade secret claim form that is filed with the Department;

(6) Failure to file the trade secret claim form with the Department, if applicable;

(7) Failure by a public employer to prepare a hazardous substance fact sheet for a trade secret substance in accordance with the requirements of 8:59-4.4(b);

(8) Failure to label at least 95 percent of containers containing hazardous substances;

(9) Failure to label at least 95 percent of all containers;

(10) Failure to label at least 95 percent of containers in accordance with the requirements of N.J.A.C. 8:59-5;

(11) (Reserved)

(12) Failure by a public employer to provide public employees material provided by the Department;

(13) Failure by a public employer to post posters provided by the Department to inform public employees of their rights under the law;

(14) Failure by a public employer to provide a public employee a copy of a Right to Know survey, appropriate hazardous substance fact sheets, and, if applicable, material safety data sheets, as soon as possible but at the latest within five working days of the request;

(15) Failure to provide copies of employee health and exposure records requested by the Department;

(16) Failure to grant the Department access to employees in order to request permission to review their health and exposure records;

(17) Failure by a public employer to establish and maintain a central file that contains a Right to Know survey, appropriate hazardous substance fact sheets and material safety data sheets, and the Right to Know Hazardous Substance List;

(18) Failure by a public employer to provide a public employee the chemical name of a substance in a container labeled with a common name, or in a container that is not labeled pursuant to the provisions of 8:59-5, as soon as possible or at the latest within five working days of the request.

iii. Any other violations of the Act or these rules generally shall be considered to be non-serious violations. The Commissioner reserves the right to find other violations of the Act to be serious.

2. Type factor: The type factor reflects the circumstances of the violation and the responsibility of the violator. There are three types of violations:

i. Willful: A willful violation is one that is the result of some deliberate, knowing, or purposeful action or inaction by the violator.

ii. Highly foreseeable: A highly foreseeable violation is one that, while not willful, was so clearly likely to have happened under all the circumstances that the violator can be charged with having known it was going to happen and failing to prevent it.

iii. Unintentional but foreseeable: An unintentional but foreseeable violation is one that the violator, by the exercise of reasonable diligence, could and should have foreseen and prevented.

3. The following presumptions shall be applied in the determination of the appropriate type factor:

i. An employer is presumed to have knowledge of all statutes and regulations applicable to its facility.

ii. Any violation known to the violator that continues for a period of 30 days or more without the violator taking steps to eliminate it, shall be presumed a willful violation.

4. Schedule of factor values: Penalties for violations shall be computed after assigning values to the Seriousness and Type Factors from the ranges set forth below:

i.	Seriousness	Values
(1) Significant	1.00
(2) Major	1.00 to 0.40
(3) Minor	0.40 to 0
ii.	Type:
(1) Willful	1.00
(2) Highly foreseeable	1.00 to 0.50
(3) Unintentional but foreseeable	0.50 to 0

5. Computation of penalty: The penalty for violations shall be computed as follows:

i. (Seriousness) x (Type) x ($ 2,500) = Penalty for each violation.

ii. (Seriousness) x (Type) x ($ 1,000) = Penalty for each day of violation after receipt of an administrative order to cease the violation from the date specified in the order for correction of the violation.

(c) Before any civil administrative penalty is imposed pursuant to this subchapter, the employer shall be notified by certified mail, return receipt requested, or by personal service. Such notice shall include:

1. A reference to the section of the Act, rule, regulation or order violated;

2. A concise statement of the facts alleged to constitute a violation;

3. A statement of the amount of the civil administrative penalties to be imposed; and

4. A statement of the employer's right to a hearing.

(d) The employer shall have 20 calendar days from receipt of the notice of imposition of a civil administrative penalty within which to deliver to the Commissioner a written request for a hearing pursuant to the Administrative Procedure Act, 52:14B-1 et seq., and the Uniform Administrative Rules of Procedure, N.J.A.C. 1:1. Subsequent to the hearing and upon finding that a violation has occurred, the Commissioner may issue a final order imposing the amount of the fine specified in the notice or such lesser amount as the Commissioner may assess pursuant to the provisions on compromise of (h) below.

(e) If no hearing is requested, the notice of imposition of a civil administrative penalty shall become a final order upon expiration of the 20-calendar-day period following receipt of the notice by the employer.

(f) Payment of the civil administrative penalty is due when a final order is issued or when the notice of imposition of a civil administrative penalty becomes a final order.

(g) The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in the Act, and the payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.

(h) The Commissioner may compromise a civil administrative penalty imposed pursuant to this subchapter, in whole or in part, upon the posting by the employer of a performance bond in an amount and upon terms and conditions that the Commissioner deems satisfactory.

N.J. Admin. Code § 8:59-8.2

Amended by 50 N.J.R. 1036(a), effective 3/19/2018