New Jersey § 58:10a-10

§ 58:10a-10.

a. Whenever the commissioner finds that any person is in violation of any provision

of this act, he shall: (1) Issue an order requiring any such person to comply in accordance with subsection

b. of this section; or (2) Bring a civil action in accordance with subsection c. of this section; or (3) Levy a civil administrative penalty in accordance with subsection d. of this section;

or (4) Bring an action for a civil penalty in accordance with subsection e. of this section;

or (5) Petition the Attorney General to bring a criminal action in accordance with subsection

f. of this section. Use of any of the remedies specified under this section shall not preclude use of

any other remedy specified. In the case of one or more pollutants for which interim enforcement limits have been

established pursuant to an administrative order, including an administrative consent

order, by the department or a local agency, the permittee shall be liable for the

enforcement limits stipulated therein. b. Whenever the commissioner finds that any person is in violation of any provision

of this act, he may issue an order (1) specifying the provision or provisions of this

act, or the rule, regulation, water quality standard, effluent limitation, or permit

of which he is in violation, (2) citing the action which caused such violation, (3)

requiring compliance with such provision or provisions, and (4) giving notice to the

person of his right to a hearing on the matters contained in the order. c. The commissioner is authorized to commence a civil action in Superior Court for

appropriate relief for any violation of this act or of a permit issued hereunder. Such relief may include, singly or in combination: (1) A temporary or permanent injunction; (2) Assessment of the violator for the reasonable costs of any investigation, inspection,

or monitoring survey which led to the establishment of the violation, and for the

reasonable costs of preparing and litigating the case under this subsection; (3) Assessment of the violator for any reasonable cost incurred by the State in removing,

correcting or terminating the adverse effects upon water quality resulting from any

unauthorized discharge of pollutants for which the action under this subsection may

have been brought; (4) Assessment against the violator of compensatory damages for any loss or destruction

of wildlife, fish or aquatic life, or other natural resources, and for any other actual

damages caused by an unauthorized discharge; (5) Assessment against a violator of the actual amount of any economic benefits accruing

to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital

or noncapital costs resulting from the violation; the return earned or that may be

earned on the amount of avoided costs; any benefits accruing to the violator as a

result of a competitive market advantage enjoyed by reason of the violation; or any

other benefits resulting from the violation. Assessments under paragraph (4) of this subsection shall be paid to the State Treasurer,

except that compensatory damages shall be paid by specific order of the court to any

persons who have been aggrieved by the unauthorized discharge. Assessments pursuant to actions brought by the commissioner under paragraphs (2),

(3) and (5) of this subsection shall be paid to the “Clean Water Enforcement Fund,”

established pursuant to section 12 of P.L.1990, c. 28 ( C.58:10A-14.4 ). d. (1)(a) The commissioner is authorized to assess, in accordance with a uniform policy

adopted therefor, a civil administrative penalty of not more than $50,000.00 for each

violation and each day during which such violation continues shall constitute an additional,

separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established

by regulation by the commissioner for violations of similar type, seriousness, and

duration. The commissioner shall adopt, by regulation, a uniform assessment of civil penalties

policy by January 1, 1992. (b) In adopting rules for a uniform penalty policy for determining the amount of a

penalty to be assessed, the commissioner shall take into account the type, seriousness,

including extent, toxicity, and frequency of a violation based upon the harm to public

health or the environment resulting from the violation, the economic benefits from

the violation gained by the violator, the degree of cooperation or recalcitrance of

the violator in remedying the violation, any measures taken by the violator to avoid

a repetition of the violation, any unusual or extraordinary costs directly or indirectly

imposed on the public by the violation other than costs recoverable pursuant to paragraph

(3) or (4) of subsection c. of this section, and any other pertinent factors that

the commissioner determines measure the seriousness or frequency of the violation,

or conduct of the violator. (c) In addition to the assessment of a civil administrative penalty, the commissioner

may, by administrative order and upon an appropriate finding, assess a violator for

costs authorized pursuant to paragraphs (2) and (3) of subsection c. of this section. (2) No assessment shall be levied pursuant to this subsection until after the discharger

has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation,

order or permit condition violated; a concise statement of the facts alleged to constitute

a violation; a statement of the amount of the civil penalties to be imposed; and

a statement of the party's right to a hearing. The ordered party shall have 20 days from receipt of the notice within which to

deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner

may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, then the notice shall become a final order after the

expiration of the 20-day period. Payment of the assessment is due when a final order is issued or the notice becomes

a final order. (3) If a civil administrative penalty imposed pursuant to this subsection is not paid

within 30 days of the date that the penalty is due and owing, and the penalty is not

contested by the person against whom the penalty has been assessed, or the person

fails to make a payment pursuant to a payment schedule entered into with the department,

an interest charge shall accrue on the amount of the penalty due and owing from the

30th day after the date on which the penalty was due and owing. The rate of interest shall be that 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. (4) The authority to levy a civil administrative penalty is in addition to all other

enforcement provisions in this act, and the payment of any assessment shall not be

deemed to affect the availability of any other enforcement provisions in connection

with the violation for which the assessment is levied. Any civil administrative penalty assessed under this section may be compromised

by the commissioner upon the posting of a performance bond by the violator, or upon

such terms and conditions as the commissioner may establish by regulation, except

that the amount compromised shall not be more than 50% of the assessed penalty, and

in no instance shall the amount of that compromised penalty be less than the statutory

minimum amount, if applicable, prescribed in section 6 of P.L.1990, c. 28 ( C.58:10A-10.1 ). In the case of a violator who is a local agency that enters into an administrative

consent order, the terms of which require the local agency to take prescribed measures

to comply with its permit, the commissioner shall have full discretion to compromise

the amount of penalties assessed or due for violations occurring during a period up

to 24 months preceding the entering into the administrative consent order; except

that the amount of the compromised penalty may not be less than the statutory minimum

amount, if applicable, prescribed in section 6 of P.L.1990, c. 28 ( C.58:10A-10.1 ). A civil administrative penalty assessed against a local agency for a violation of

an administrative consent order may not be compromised by more than 50% of the assessed

penalty. In no instance shall the amount of a compromised penalty assessed against a local

agency be less than the statutory minimum amount, if applicable, prescribed in section

6 of P.L.1990, c. 28 ( C.58:10A-10.1 ). The commissioner shall not compromise the amount of any component of a civil administrative

penalty which represents the economic benefit gained by the violator from the violation. (5) A person, other than a local agency, appealing a penalty assessed against that

person in accordance with this subsection, whether contested as a contested case pursuant

to P.L.1968, c. 410 ( C.52:14B-1 et seq. ) or by appeal to a court of competent jurisdiction, shall, as a condition of filing

the appeal, post with the commissioner a refundable bond, or other security approved

by the commissioner, in the amount of the civil administrative penalty assessed. If the department's assessed penalty is upheld in full or in part, the department

shall be entitled to a daily interest charge on the amount of the judgment from the

date of the posting of the security with the commissioner and until paid in full. The rate of interest shall be that 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. In addition, if the amount of the penalty assessed by the department is upheld in

full in an appeal of the assessment at an administrative hearing or at a court of

competent jurisdiction, the person appealing the penalty shall reimburse the department

for all reasonable costs incurred by the department in preparing and litigating the

imposition of the assessment, except that no litigation costs shall be imposed where

the appeal ultimately results in a reduction or elimination of the assessed penalty. (6) A civil administrative penalty imposed pursuant to a final order: (a) may be collected or enforced by summary proceedings in a court of competent jurisdiction

in accordance with “the penalty enforcement law,” N.J.S.2A:58-1 et seq. ; or (b) shall constitute a debt of the violator or discharger and the civil administrative

penalty may be docketed with the clerk of the Superior Court, and shall have the same

standing as any judgment docketed pursuant to N.J.S.2A:16-1 ; except that no lien shall attach to the real property of a violator pursuant to

this subsection 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. No lien shall attach to the property of a local agency. (7) The commissioner shall refer to the Attorney General and the county prosecutor

of the county in which the violations occurred the record of violations of any permittee

determined to be a significant noncomplier. e. Any person who violates this act or an administrative order issued pursuant to

subsection b. or a court order issued pursuant to subsection c., or who fails to pay

a civil administrative penalty in full pursuant to subsection d., or to make a payment

pursuant to a payment schedule entered into with the department, shall be subject

upon order of a court to a civil penalty not to exceed $50,000.00 per day of such

violation, and each day's continuance of the violation shall constitute a separate

violation. Any penalty incurred under this subsection may be recovered with costs, and, if

applicable, interest charges, in a summary proceeding pursuant to “the penalty enforcement

law” ( N.J.S.2A:58-1 et seq. ). In addition to any civil penalties, costs or interest charges, the court, in accordance

with paragraph (5) of subsection c. of this section, may assess against a violator

the amount of any actual economic benefits accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce “the penalty enforcement law”

in conjunction with this act. f. (1)(a) Any person who purposely, knowingly, or recklessly violates this act, and

the violation causes a significant adverse environmental effect, shall, upon conviction,

be guilty of a crime of the second degree, and shall, notwithstanding the provisions

of subsection a. of N.J.S.2C:43-3 , be subject to a fine of not less than $25,000 nor more than $250,000 per day of

violation, or by imprisonment, or by both. (b) As used in this paragraph, a significant adverse environmental effect exists when

an action or omission of the defendant causes: serious harm or damage to wildlife,

freshwater or saltwater fish, any other aquatic or marine life, water fowl, or to

their habitats, or to livestock, or agricultural crops; serious harm, or degradation

of, any ground or surface waters used for drinking, agricultural, navigational, recreational,

or industrial purposes; or any other serious articulable harm or damage to, or degradation

of, the lands or waters of the State, including ocean waters subject to its jurisdiction

pursuant to P.L.1988, c. 61 ( C.58:10A-47 et seq. ). (2) Any person who purposely, knowingly, or recklessly violates this act, including

making a false statement, representation, or certification in any application, record,

or other document filed or required to be maintained under this act, or by falsifying,

tampering with, or rendering inaccurate any monitoring device or method required to

be maintained pursuant to this act, or by failing to submit a monitoring report, or

any portion thereof, required pursuant to this act, shall, upon conviction, be guilty

of a crime of the third degree, and shall, notwithstanding the provisions of subsection

b. of N.J.S.2C:43-3 , be subject to a fine of not less than $5,000 nor more than $75,000 per day of violation,

or by imprisonment, or by both. (3) Any person who negligently violates this act, including making a false statement,

representation, or certification in any application, record, or other document filed

or required to be maintained under this act, or by falsifying, tampering with, or

rendering inaccurate any monitoring device or method required to be maintained pursuant

to this act, or by failing to submit a discharge monitoring report, or any portion

thereof, required pursuant to this act, shall, upon conviction, be guilty of a crime

of the fourth degree, and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3 , be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation,

or by imprisonment, or by both. (4) Any person who purposely or knowingly violates an effluent limitation or other

condition of a permit, or who discharges without a permit, and who knows at that time

that he thereby places another person in imminent danger of death or serious bodily

injury, as defined in subsection b. of N.J.S.2C:11-1 , shall, upon conviction, be guilty of a crime of the first degree, and shall, notwithstanding

the provisions of subsection a. of N.J.S.2C:43-3 , be subject of a fine of not less than $50,000 nor more than $250,000, or, in the

case of a corporation, a fine of not less than $200,000 nor more than $1,000,000,

or by imprisonment or by both. (5) As used in this subsection, “purposely,” “knowingly,” “recklessly,” and “negligently”

shall have the same meaning as defined in N.J.S.2C:2-2 . g. All conveyances used or intended for use in the purposeful or knowing discharge,

in violation of the provisions of P.L.1977, c. 74 ( C.58:10A-1 et seq. ), of any pollutant or toxic pollutant are subject to forfeiture to the State pursuant

to the provisions of P.L.1981, c. 387 ( C.13:1K-1 et seq. ). h. The amendatory portions of this section, as set forth in P.L.1990, c. 28 ( C.58:10A-10.1 et al.), except for subsection f. of this section, shall not apply to violations

occurring prior to July 1, 1991.