N.J. Admin. Code § 7:27A-3.5

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:27A-3.5 - Civil administrative penalty determination--general

(a) The Department may assess a civil administrative penalty of not more than $ 10,000 for the first offense, not more than $ 25,000 for the second offense, and not more than $ 50,000 for the third and each subsequent offense against each violator who fails to comply with the Act, or any rule promulgated, or administrative order, operating certificate, registration requirement or permit issued pursuant thereto.

(b) Each violation of any provision of the Act, or any rule promulgated, or administrative order, operating certificate, registration requirement or permit issued pursuant thereto shall constitute a separate and distinct offense.

(c) Each day during which a violation continues shall constitute an additional, separate, and distinct offense.

(d) The Department may assess a civil administrative penalty for a violation of any provision of N.J.A.C. 7:27, 27C, or 27F for which no penalty amount is specified pursuant to N.J.A.C. 7:27A-3.6 through 3.11. The Department shall base the amount of such a penalty assessment upon the following factors:

1. The amount of the penalty established under N.J.A.C. 7:27A-3.6 through 3.11 for a violation that is comparable to the violation in question. Comparability is based upon the nature of the violations (for example, violations of recordkeeping requirements, reporting requirements, or emission limits) and the nature and extent of the environmental harm likely to result from the type of violation; and

2. The factors listed in (e) below.

(e) The Department may, in its discretion, adjust the amount of any penalty assessed pursuant to this section or under 7:27A-3.6, 3.7, 3.8, 3.9, 3.10, or 3.11, based upon any or all of the factors listed in (e)1 through 6 below. The Department may apply such factors in addition to the factors listed in 7:27A-3.10(e)5 and 3.11. No such factor constitutes a defense to any violation.

1. The compliance history of the violator;

2. The number of times and the frequency with which the violation occurred;

3. The severity of the violation, including impact on the environment;

4. The nature, timing and effectiveness of any measures taken by the violator to mitigate the effects of the violation for which the penalty is being assessed;

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

6. Any other mitigating, extenuating or aggravating circumstances.

(f) Except as provided for in (g) and (h) below, the Department may, in its discretion, treat an offense as a first offense solely for civil administrative penalty determination purposes, if the violator has not committed the same offense in the five years immediately preceding the date of the pending offense.

(g) For violations of N.J.A.C. 7:27-8.3(e) or 22.3(c) or (e); 7:27C-8.1(k), (l), or (n); or 7:27F-2.6(e), indicated by a continuous monitoring system, the Department shall calculate penalties in accordance with N.J.A.C. 7:27A-3.10(n)1 and may, in its discretion for purposes of determining the statutory maximum penalty for an offense, treat an offense as a first offense for civil administrative penalty determination purposes, at the beginning of each calendar quarter.

(h) For violations of N.J.A.C. 7:27-8.3(e) or 22.3(d) or (e); 7:27C 8.1(k), (m), or (n); or 7:27F-2.6(e), when a continuous monitoring system operates out of control or is out of service, the Department shall calculate penalties in accordance with N.J.A.C. 7:27A-3.10(n)2 and may, in its discretion, treat an offense as a first offense for civil administrative penalty determination purposes, if the violator has not committed the same offense in the four consecutive calendar quarters immediately preceding the first day of the calendar quarter during which the pending offense was committed.

N.J. Admin. Code § 7:27A-3.5

Amended by 47 N.J.R. 1937(a), effective 8/3/2015

Amended by 51 N.J.R. 992(a), effective 6/17/2019

Amended by 54 N.J.R. 1018(a), effective 6/6/2022

Amended by 55 N.J.R. 14(a), effective 1/3/2023