A711

ASSEMBLY, No. 711

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman R. SMITH

An Act concerning the publication of violations of certain environmental statutes, amending P.L.1970, c.39, P.L.1971, c.176, P.L.1983, c.330, P.L.1984, c.210, P.L.1970, c.272, P.L.1987, c.156, P.L.1973, c.185, P.L.1954, c.212, P.L.1983, c.315, P.L.1977, c.224, P.L.1972, c.185, P.L.1976, c.141, and P.L.1985, c.403, and making an appropriation.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 9 of P.L.1970, c.39 (C.13:1E-9) is amended to read as follows:

9. a. All codes, rules and regulations adopted by the department related to solid waste collection and disposal shall have the force and effect of law. These codes, rules and regulations shall be observed throughout the State and shall be enforced by the department and by every local board of health, or county health department, as the case may be.

The department and the local board of health, or the county health department, as the case may be, shall have the right to enter a solid waste facility at any time in order to determine compliance with the registration statement and engineering design required pursuant to section 5 of P.L.1970, c.39 (C.13:1E-5), and with the provisions of all applicable laws or rules and regulations adopted pursuant thereto.

The municipal attorney or an attorney retained by a municipality in which a violation of such laws or rules and regulations adopted pursuant thereto is alleged to have occurred shall act as counsel to a local board of health.

The county counsel or an attorney retained by a county in which a violation of such laws or rules and regulations adopted pursuant thereto is alleged to have occurred shall act as counsel to the county health department.

Any county health department may charge and collect from the owner or operator of any sanitary landfill facility within its jurisdiction such fees for enforcement activities as may be established by ordinance or resolution adopted by the governing body of any such county. [Such] The fees shall be established in accordance with a fee schedule regulation [to be] adopted by the department, pursuant to law, [within 60 days of the effective date of the amendatory act] and shall be utilized exclusively to fund such enforcement activities.

All enforcement activities undertaken by county health departments pursuant to this subsection shall conform to all applicable performance and administrative standards adopted pursuant to section 10 of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-28).

b. Whenever the commissioner finds that a person has violated any provision of P.L.1970, c.39 (C.13:1E-1 et seq.), or any rule or regulation adopted, permit issued, or district solid waste management plan adopted pursuant to P.L.1970, c.39, he shall:

(1) Issue an order requiring the person found to be in violation to comply in accordance with subsection c. of this section;

(2) Bring a civil action in accordance with subsection d. of this section;

(3) Levy a civil administrative penalty in accordance with subsection e. of this section;

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

(5) Petition the Attorney General to bring a criminal action in accordance with [subsection] subsections g., h. or i. of this section. [Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.]

c. Whenever the commissioner finds that a person has violated any provision of P.L.1970, c.39, or any rule or regulation adopted, permit issued, or district solid waste management plan adopted pursuant to P.L.1970, c.39, he may issue an order specifying the provision or provisions of P.L.1970, c.39, or the rule, regulation, permit or district solid waste management plan of which the person is in violation, citing the action which constituted the violation, ordering abatement of the violation, and giving notice to the person of his right to a hearing on the matters contained in the order. The ordered party shall have 20 calendar days from receipt of the order 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. If no hearing is requested, then the order shall become final after the expiration of the 20 day period.] Such order shall be effective upon receipt and any person to whom such order is directed shall comply with the order immediately. A request for hearing shall not automatically stay the effect of the order.

d. The commissioner, a local board of health or county health department may institute an action or proceeding in the Superior Court for injunctive and other relief, including the appointment of a receiver for any violation of this act, or of any code, rule or regulation [promulgated] adopted, permit issued [or], district solid waste management plan adopted or order issued pursuant to this act and said court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief, notwithstanding the provisions of R.S.48:2-24.

Such relief may include, singly or in combination:

(1) A temporary or permanent injunction;

(2) Assessment of the violator for the 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 cost incurred by the State in removing, correcting or terminating the adverse effects upon water and air quality resulting from any violation of any provision of this act or any rule, regulation or condition of approval 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, and for any other actual damages caused by any violation of this act or any rule, regulation or condition of approval established pursuant to this act for which the action under this subsection may have been brought. Assessments under this subsection shall be paid to the State Treasurer, or to the local board of health, or to the county health department, as the case may be, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.

If a proceeding is instituted by a local board of health or county health department, notice thereof shall be served upon the commissioner in the same manner as if the commissioner were a named party to the action or proceeding. The department may intervene as a matter of right in any proceeding brought by a local board of health or county health department.

e. The commissioner is authorized to assess a civil administrative penalty of not more than $50,000.00 for each violation provided that each day during which the violation continues shall constitute an additional, separate and distinct offense. The commission shall not assess a civil administrative penalty in excess of $25,000.00 for a single violation, or in excess of $2,500.00 for each day during which a violation continues, until the department has adopted, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), regulations requiring the commissioner, in assessing a civil administrative penalty, to consider the operational history of the solid waste facility at which the violation occurred, the severity of the violation, the measures taken to mitigate or prevent further violations, and whether the penalty will maintain an appropriate deterrent. No assessment shall be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, order, permit condition or district solid waste management plan violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties to be imposed, and a statement of the party's right to a hearing. The ordered party shall have 20 calendar 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, 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. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L.1970, c.39, 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. The department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate.

f. Any person who violates the provisions of [this act] P.L.1970, c.39, or any code, rule or regulation [promulgated] adopted pursuant [to this act] thereto shall be liable to a penalty of not more than $50,000.00 per day, to be collected in a civil action commenced by a local board of health, a county health department, or the commissioner.

Any person who violates an administrative order issued pursuant to subsection c. of this section, or a court order issued pursuant to subsection d. of this section, or who fails to pay an administrative assessment in full pursuant to subsection e. of this section is subject upon order of a court to a civil penalty not to exceed $100,000.00 per day of such violations.

Of the penalty imposed pursuant to this subsection, 10% or $250.00, whichever is greater, shall be paid to the department from the General Fund if the Attorney General determines that a person is entitled to a reward pursuant to section 2 of P.L.1987, c.158 (C.13:1E-9.2).

Any penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of "the penalty enforcement law" in connection with this act.

g. Any person who knowingly:

(1) Transports any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;

(2) Generates and causes or permits to be transported any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;

(3) Disposes, treats, stores or transports hazardous waste without authorization from the department;

(4) Makes any false or misleading statement to any person who prepares any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department; or

(5) Makes any false or misleading statement on any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be subject to a fine of not more than $50,000.00 for the first offense and not more than $100,000.00 for the second and each subsequent offense and restitution, in addition to any other appropriate disposition authorized by subsection b. of N.J.S.2C:43-2.

h. Any person who recklessly:

(1) Transports any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;

(2) Generates and causes or permits to be transported any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;

(3) Disposes, treats, stores or transports hazardous waste without authorization from the department;

i. Any person who, regardless of intent, generates and causes or permits any hazardous waste to be transported, transports, or receives transported hazardous waste without completing and submitting to the department a hazardous waste manifest in accordance with the provisions of this act or any rule or regulation adopted pursuant hereto shall, upon conviction, be guilty of a crime of the fourth degree.

j. All conveyances used or intended for use in the willful discharge, in violation of the provisions of P.L.1970, c.39 (C.13:1E-1 et seq.), of any solid waste, or hazardous waste as defined in P.L.1976, c.99 (C.13:1E-38 et seq.) are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).

k. The provisions of N.J.S.2C:1-6 to the contrary notwithstanding, a prosecution for a violation of the provisions of subsection g., subsection h. or subsection i. of this section shall be commenced within five years of the date of discovery of the violation.

l. Pursuit of any remedy specified in this section shall not preclude the pursuit of any other remedy provided by any other law. Administrative and judicial remedies provided in this section may be pursued simultaneously.

m. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1990, c.70, s.1)

2. Section 10 of P.L.1971, c.176 (C.13:1F-10) is amended to read as follows:

10. If any person violates any of the provisions of this act or any rule, regulation or order promulgated pursuant to the provisions of this act, the department may institute a civil action in a court of competent jurisdiction for injunctive relief to prohibit and prevent such violation or violations and the said court may proceed in the action in a summary manner.

Any person who violates the provisions of this act or any rule, regulation or order promulgated pursuant to this act shall be liable to a penalty of not more than $3,000.00 for each offense, to be collected in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.) or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court shall have jurisdiction to enforce said penalty enforcement law. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense.

Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice required shall apply only to violation the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

The department is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.

(cf: P.L.1991, c.91, s.222)

3. Section 8 of P.L.1983, c.330 (C.13:1K-13) is amended to read as follows:

8. a. Failure of the transferor to comply with any of the provisions of this act is grounds for voiding the sale or transfer of an industrial establishment or any real property utilized in connection therewith by the transferee, entitles the transferee to recover damages from the transferor, and renders the owner or operator of the industrial establishment strictly liable, without regard to fault, for all cleanup and removal costs and for all direct and indirect damages resulting from the failure to implement the cleanup plan.

b. Failure to submit a negative declaration, or cleanup plan pursuant to the provisions of section 4 of this act is grounds for voiding the sale by the department.

c. Any person who knowingly gives or causes to be given any false information or who fails to comply with the provisions of this act is liable for a penalty of not more than $25,000.00 for each offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional and separate offense. Penalties shall be collected in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). Any officer or management official of an industrial establishment who knowingly directs or authorizes the violation of any provisions of this act shall be personally liable for the penalties established in this subsection.

d. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1983, c.330, s.8)

4. Section 2 of P.L.1984, c.210 (C.13:1K-16) is amended to read as follows:

2. a. An owner or operator of an industrial establishment, or real property which once was the site of an industrial establishment who knows or suspects the occurrence of any hazardous discharge on-site, above or below ground at the industrial establishment or real property shall, within 10 days of obtaining any information leading to this knowledge or suspicion, make an inspection thereof and file a written report concerning this hazardous discharge with the governing body of the municipality in which the industrial establishment or real property is located and the local board of health. The report shall include: the types and quantity of hazardous substances involved in the hazardous discharge if known; the location of the hazardous discharge; and any actions taken by the owner or operator of the industrial establishment to contain the hazardous substance.

b. A person who fails to make a report required pursuant to this section knowingly gives or causes to be given any false information in any such report, or otherwise violates the provisions of this section, or any rule or regulation adopted pursuant thereto, is liable to a penalty of not more than $50,000.00, to be collected in a summary proceeding under "the penalty enforcement law," N.J.S.2A:58-1 et seq., or in a court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court shall have jurisdiction to enforce "the penalty enforcement law." If the violation is of a continuing nature each day during which it continues shall constitute an additional, separate and distinct offense.

c. If any person violates any of the provisions of this section, the Department of Environmental Protection, the governing body of the municipality or the local health department may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent the continuation of the violation and the court may proceed in a summary manner.

d. Any person reporting a hazardous discharge pursuant to the provisions of this section shall not, by this report, incur liability for the cleanup of the hazardous discharge. The provisions of this subsection shall not affect a person's liability for the cleanup of a hazardous discharge under any other law, rule, or regulation.

e. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1984, c.210, s.2)

5. Section 9 of P.L.1970, c.272 (C.13:9A-9) is amended to read as follows:

9. a. Any person who violates any order by the commissioner, or violates any of the provisions of this act, shall be liable to the State for the cost of restoration of the affected wetland to its condition prior to such violation insofar as that is possible, and shall be punished by a fine of not more than $1,000.00, to be collected in accordance with the provisions of [the Penalty Enforcement Law] "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).

b. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine imposed for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1970, c.272, s.9)

6. Section 21 of P.L.1987, c.156 (C.13:9B-21) is amended to read as follows:

21. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of this act, or any rule or regulation adopted, or permit or order issued, pursuant to this act, the commissioner may:

(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.

Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.

b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of this act, or of any rule or regulation adopted, or permit or order issued, pursuant to this act, the commissioner may issue an order: (1) specifying the provision or provisions of this act, or the rule, regulation, permit or order of which he is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the freshwater wetland or transition area which is the site of the violation; and (5) providing notice to the person of his right to a hearing on the matters contained in the order.

c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provisions of this act, or any rule or regulation adopted, or permit or order issued, pursuant to this act. Such relief may include, singly or in combination:

(1) A temporary or permanent injunction;

(3) Assessment of the violator for any costs incurred by the State in removing, correcting, or terminating the adverse effects upon the freshwater wetland resulting from any unauthorized regulated activity for which legal action under this subsection may have been brought;

(4) Assessment against the violator for compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by an unauthorized regulated activity. Assessments under 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 regulated activity;

(5) A requirement that the violator restore the site of the violation to the maximum extent practicable and feasible.

d. The commissioner is authorized to assess a civil administrative penalty of not more than $10,000.00 for each violation, and each day during which each 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. No assessment shall be levied pursuant to this section until after the party has been notified by certified mail or personal service. The notice shall identify the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the amount of the civil penalties to be imposed; and affirm the rights of the alleged violator 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, 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. The authority to levy an administrative order 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.

e. A person who violates this act, 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 assessment in full pursuant to subsection d., shall be subject, upon order of a court, to a civil penalty not to exceed $10,000.00 per day of such violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce "the penalty enforcement law" in conjunction with this act.

f. A person who willfully or negligently violates this act shall be guilty, upon conviction, of a crime of the fourth degree and shall be subject to a fine of not less than $2,500.00 nor more than $25,000.00 per day of violation. A second offense under this subsection shall subject the violator to a fine of not less than $5,000.00 nor more than $50,000.00 per day of violation. A person who knowingly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or who falsifies, tampers with or knowingly renders inaccurate, any monitoring device or method required to be maintained pursuant to this act, shall, upon conviction, be subject to a fine of not more than $10,000.00.

g. In addition to the penalties prescribed in this section, a notice of violation of this act shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and with the clerk of the Superior Court and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed.

h. If the violation is one in which the department has determined that the restoration of the site to its pre-violation condition would increase the harm to the freshwater wetland or its ecology, the department may issue an "after the fact" permit for the regulated activity that has already occurred; provided that assessment against the violator for costs or damages enumerated in subsection c. of this section have been made, the creation or restoration of freshwater wetlands resources at another site has been required of the violator, an opportunity has been afforded for public hearing and comment, and the reasons for the issuance of the "after the fact" permit are published in the New Jersey Register and in a newspaper of general circulation in the geographical area of the violation. Any person violating an "after the fact" permit issued pursuant to this subsection shall be subject to the provisions of this section.

i. The burden of proof and degrees of knowledge or intent required to establish a violation of this act shall be no greater than the burden of proof or degree of knowledge or intent which the United States Environmental Protection Agency must meet in establishing a violation of the Federal Act or impelmenting regulations.

j. The department shall establish and implement a program designed to facilitate public participation in the enforcement of this act which complies with the requirements of the Federal Act and implementing regulations.

k. The department shall make available without restriction any information obtained or used in the implementation of this act to the United States Environmental Protection Agency upon a request therefor.

l. The department may require an applicant or permittee to provide any information the department requires to determine compliance with the provisions of this act.

m. The department shall have the authority to enter any property, facility, premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photocopying documents or records, and for otherwise determining compliance with the provisions of this act.

n. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1987, c.156, s.21)

7. Section 18 of P.L.1973, c.185 (C.13:19-18) is amended to read as follows:

18. a. If any person violates any of the provisions of this act, rule, regulation or order promulgated or issued pursuant to the provisions of this act, the department may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent such violation or violations and said court may proceed in a summary manner. Any person who violates any of the provisions of this act, rule, regulation or order promulgated or issued pursuant to this act shall be liable to a penalty of not more than $3,000.00 to be collected in a summary proceeding or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. The department is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under the circumstances.

(cf: P.L.1973, c.185, s.18)

8. Section 19 of P.L.1954, c.212 (C.26:2C-19) is amended to read as follows:

19. a. If any person violates any of the provisions of this act or any code, rule, regulation or order promulgated or issued pursuant to the provisions of this act, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent such violation or violations and the said court may proceed in the action in a summary manner.

b. Any person who violates the provisions of this act or any code, rule, regulation or order promulgated or issued pursuant to this act shall be liable to a civil administrative penalty of not more than $10,000.00 for the first offense, not more than $25,000.00 for the second offense, and not more than $50,000.00 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense. No civil administrative penalty shall be levied except upon an administrative order issued pursuant to section 14 of P.L.1954, c.212 (C.26:2C-14).

c. The department is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances.

d. Any person who violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation, or order promulgated or issued pursuant to that act, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty in full pursuant to section 9 of P.L.1962, c.215 (C.26:2C-14.1), is subject, upon order of the court, to a civil penalty of not more than $10,000.00 for the first offense, not more than $25,000.00 for the second offense, and not more than $50,000.00 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which the violation continues, or each day in which the civil administrative penalty is not paid in full, constitutes an additional, separate and distinct offense. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Law Division of the Superior Court has jurisdiction to enforce "the penalty enforcement law."

e. A person who causes a release of air contaminants in a quantity or concentration which poses a potential threat to public health, welfare or the environment or which might reasonably result in citizen complaints shall immediately notify the department. A person who fails to so notify the department is liable to the penalties and procedures prescribed in this section.

f. Any person who:

(1) purposely or knowingly violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.), or any code, rule, regulation, administrative order, or court order promulgated or issued pursuant thereto, is guilty of a crime of the third degree;

(2) recklessly violates the provisions of P.L.1954, c.212 (C.26:2C-1 et seq.), or any code, rule, regulation, administrative order, or court order promulgated or issued pursuant thereto, is guilty of a crime of the fourth degree.

g. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1989, c.333, s.1)

9. Section 33 of P.L.1983, c.315 (C.34:5A-31) is amended to read as follows:

33. a. Whenever, on the basis of information available to him, the Commissioner of Environmental Protection finds that an employer is in violation of subsection b. of section 7, or of subsection b. or c. of section 9 of this act, or any rule and regulation adopted pursuant thereto, or the Commissioner of Health finds that an employer is in violation of subsection a. of section 7, or of section 10, 11, 12, 13, or 14 of this act, or any rule and regulation adopted pursuant thereto, the Commissioner of Environmental Protection, or the Commissioner of Health, as the case may be, shall:

(1) Issue an order in accordance with subsection b. of this section requiring the employer to comply;

(2) Bring a civil action in accordance with subsection c. of this section;

(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.

The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.

b. Whenever, on the basis of information available to him, the Commissioner of Environmental Protection finds that an employer is in violation of subsection b. of section 7, or of subsection b. or c. of section 9 of this act or any rule or regulation adopted pursuant thereto, or the Commissioner of Health finds that an employer is in violation of subsection a. of section 7, or of section 10, 11, 12, 13, or 14 of this act, or any rule or regulation adopted pursuant thereto, the Commissioner of Environmental Protection or the Commissioner of Health, as the case may be, may issue an order (1) specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto of which the employer is in violation; (2) citing the action which caused the violation; (3) requiring compliance with the provision of this act or the rules and regulations adopted pursuant thereto of which he is in violation; and (4) giving notice to the employer of his right to a hearing on the matters contained in the order.

c. The Commissioner of Environmental Protection or the Commissioner of Health, as appropriate, is authorized to commence a civil action in Superior Court for appropriate relief from a violation of this act. This relief may include an assessment against the violator for the costs of any investigation, inspection, or monitoring survey which led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d. The Commissioner of Environmental Protection or the Commissioner of Health, as appropriate, is authorized to impose a civil administrative penalty of not more than $2,500.00 for each violation and additional penalties of not more than $1,000.00 for each day during which a violation continues after receipt of an order from the commissioner to cease the violation. Any amount imposed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, and duration. No civil administrative penalty shall be imposed until after the employer has been notified by certified mail or personal service. The notice shall include a reference to the section of the act, rule, regulation or order violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil administrative penalties to be imposed; and a statement of the employer's right to a hearing. The employer shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after imposing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this 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. A civil administrative penalty imposed under this section may be compromised by the commissioner upon the posting of a performance bond by the employer, or upon terms and conditions the commissioner may establish by regulation.

e. An employer who violates this act, an order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, shall be subject, upon order of a court, to a civil penalty not to exceed $2,500.00 for each day during which the violation continues. An employer who willfully or knowingly violates this act, or who willfully or knowingly makes a false statement, representation, or certification in any document filed or required to be maintained under this act, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device required to be maintained pursuant to this act, is subject upon order of a court, to a civil penalty of not less than $10,000.00, nor more than $5,000.00 per day of violation. Any penalty imposed pursuant to this subsection may be collected, and any costs incurred in connection therewith may be recovered, in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce "the penalty enforcement law."

f. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1991, c.91, s.345)

10. Section 10 of P.L.1977, c.224 (C.58:12A-10) is amended to read as follows:

10. a. If any person violates any of the provisions of this act or any rule, regulation or order promulgated or issued pursuant to the provisions of this act, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent such violation or violations, and the said court may proceed in the action in a summary manner.

b. Any person who violates the provisions of this act or any rule, regulation or order promulgated pursuant to this act shall be liable to a civil administrative penalty of not more than $5,000.00 for the first offense, not less than $5,000.00 nor more than $10,000.00 for the second offense, and up to $25,000.00 for the third and each subsequent offense, to be collected in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.), or in any case before a court of competent jurisdiction wherein injunctive relief had been requested. If the violation is of a continuing nature, each day during which it continues subsequent to receipt of an order to cease the violation shall constitute an additional, separate and distinct offense. No civil administrative penalty shall be levied, except subsequent to the notification of the violator 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 the violation; a statement of the amount of the civil penalties to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing and upon a 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, the notice shall become a final order upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this 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.

d. Any person who violates this act, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection b. of this section shall be subject, upon order of the court, to a civil penalty not to exceed $10,000.00 per day of the violation, and each day's continuance of the violation shall constitute a separate and distinct violation. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce "the penalty enforcement law."

(cf: P.L.1991, c.91, s.531)

11. Section 12 of P.L.1972, c.185 (C.58:16A-63) is amended to read as follows:

12. [(a)]a. Any person who knowingly violates a provision of this act or a rule, regulation or order adopted pursuant to this act shall be subject to a penalty of not more than $2,500.00 for each offense and any person who otherwise violates a provision of this act shall be subject to a penalty of not more than $1,500.00 for each offense, both to be collected by the department in a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.), and in any court of competent jurisdiction wherein injunctive relief has been requested. The Superior Court shall have jurisdiction to enforce said penalty enforcement law. If the violation is of a continuing nature each day which it continues shall constitute an additional, separate and distinct offense. The department is hereby authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances. All moneys recovered in any such action, together with the costs recovered therein, shall be paid to the Environmental Services Fund.

[(b)]b. If any person violates any of the provisions of this act or any rule or regulation promulgated pursuant to the provisions of this act, the department may institute an action in a court of competent jurisdiction for injunctive relief to prohibit and prevent such violation or violations and the said court may proceed in the action in a summary manner.

c. Any person who violates the provisions of this act, or any rule or regulation adopted pursuant thereto, shall publish, in at least two newspapers in general circulation in the area where the violation occurred, a notice of the violation. The notice shall include the name and address of the person violating the provisions of this act, or any rule or regulation adopted pursuant thereto, the specific provision of this law, or any rule or regulation adopted pursuant thereto violated, a brief description of the violation, and any fines or penalties paid or agreed to by the person violating this law or any rule or regulation adopted pursuant thereto. The notice shall be printed in a size and format and in a section of the newspaper, as specified by the department, so as to be prominently visible. This notice requirement shall apply only to violations the fine for which exceeds $2,000, for which the alleged violator has exhausted, or has chosen not to pursue, the available appeal process. Notice shall be published within 45 days from the date of assessment of, or agreement to, the fine or, in the case of an appeal, the rendering of a final decision on the appeal.

(cf: P.L.1991, c.91, s.532)

12. Section 22 of P.L.1976, c.141 (C.58:10-23.11u) is amended to read as follows:

22. a.[(1)]Whenever, on the basis of available information, the department determines that a person is in violation of a provision of P.L.1976, c.141 (C.58:10-23.11 et seq.), including any rule, regulation, plan, information request, access request, order or directive promulgated or issued pursuant thereto, or that a person knowingly has given false testimony, documents or information to the department, the department may:

(a) bring a civil action in accordance with subsection b. of this section;

(b) levy a civil administrative penalty in accordance with subsection c. of this section; or

Use of any remedy specified in this section shall not preclude use of any other remedy. The department may simultaneously pursue administrative and judicial remedies provided in this section.

b. The department may commence a civil action in Superior Court for, singly or in combination:

(1) a temporary or permanent injunction;

(2) the costs of any investigation, cleanup or removal, and for the reasonable costs of preparing and successfully litigating an action under this subsection;

(3) the cost of restoring, repairing, or replacing real or personal property damaged or destroyed by a discharge, any income lost from the time the property is damaged to the time it is restored, repaired or replaced, and any reduction in value of the property caused by the discharge by comparison with its value prior thereto;

(4) the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge; and

(5) any other costs incurred by the department pursuant to P.L.1976, c.141.

Compensatory damages for damages awarded to a person other than the State shall be paid to the person injured by the discharge.

c. (1) The department may assess a civil administrative penalty of not more than $50,000 for each violation, and each day of violation shall constitute an additional, separate and distinct violation. A civil administrative penalty shall not be levied until a violator has been notified by certified mail or personal service of:

(a) the statutory or regulatory basis of the violation;

(b) the specific citation of the act or omission constituting the violation;

(d) the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.

(2) (a) A violator shall have 20 calendar days following receipt of notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all departmental procedures shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the department shall issue a final order assessing the amount of the civil administrative penalty specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of assessment of a civil administrative penalty shall become a final order on the 21st calendar day following receipt of the notice by the violator. If the department denies a hearing request, the notice of denial shall become a final order upon receipt of the notice by the violator.

(b) A civil administrative penalty may be settled by the department on such terms and conditions as the department may determine.

(c) Payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement remedy in connection with the violation for which the penalty was levied.

(3) If a civil administrative penalty imposed pursuant to this section 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 from the 30th day that amount was due and owing. In the case of an appeal of a civil administrative penalty, if the amount of the penalty is upheld, in whole or in part, the rate of interest shall be calculated on that amount as of the 30th day from the date the amount was due and owing under the administrative order. 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 department may assess and recover, by civil administrative order, the costs of any investigation, cleanup or removal, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty pursuant to this subsection. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.

d. Any person who violates a provision of P.L.1976, c.141 (C.58:10-23.11 et seq.), or a court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject to a civil penalty not to exceed $50,000.00 per day for each 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 in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.) in the Superior Court or a municipal court.

e. All conveyances used or intended for use in the willful discharge of any hazardous substance are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).

(cf: P.L.1990, c.75, s.1)

13. Section 12 of P.L.1985, c.403 (C.13:1K-30) is amended to read as follows:

12. a. If any person violates any of the provisions of sections 4 through 8 of this act or any rule, regulation or order promulgated or issued pursuant thereto, the department may institute a civil action in a court of competent jurisdiction for injunctive or any other appropriate relief to prohibit and prevent this violation and the court may proceed in the action in a summary manner.

b. Any person who violates the provisions of sections 4 through 8 of this act or any rule, regulation or order promulgated pursuant thereto is liable to a civil administrative penalty of not more than $10,000.00 for the first offense, not more than $20,000.00 for the second offense, and up to $50,000.00 for the third and each subsequent offense. If the violation is of a continuing nature, each day during which it continues constitutes an additional, separate and distinct offense. No civil administrative penalty shall be levied except subsequent to the notification of the violator 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 the violation; a statement of the amount of the civil penalties to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing and upon a 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, the notice shall become a final order upon the expiration of the 20-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this 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.

c. The department is authorized and empowered to compromise and settle any claim for a penalty under this section in such amount in the discretion of the department as may appear appropriate and equitable under all of the circumstances, including the posting of a performance bond by the violator.

d. Any person who violates any of the provisions of sections 4 through 8 of this act, or any rule, regulation, or order promulgated or issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section or a court order issued pursuant to subsection a. of this section or who fails to pay a civil administrative penalty in full pursuant to subsection b. of this section is subject, upon order of the court, to a civil penalty not to exceed $10,000.00 per day of the violation, and each day's continuance of the violation constitutes a separate and distinct violation. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce "the penalty enforcement law."

(cf: P.L.1985, c.403, s.12)

14. There is appropriated from the General Fund to the Department of Environmental Protection the sum of $50,000 for the purpose of implementing the provisions of this act.

15. This act shall take effect immediately.

STATEMENT

This bill requires persons violating designated State environmental laws to publish a public notice of the violation. Publication is to be made in at least two newspapers circulating within the area of the violation, and shall include the name and address of the violator, the provision of law, rule or regulation violated, a description of the violation, and the fines or penalties paid or to which the violator has agreed. Public notice shall be given only if the amount of the penalty exceeds $2,000.00. Notice shall be provided within 45 days of imposition of the fine or, in the case, of an appeal, the rendering of a final decision on the appeal. The Department of Environmental Protection shall specify the size and format of the notice and section of the newspaper in which it is to be published.

The provisions of the bill apply to violations of the Solid Waste Management Act, the Pesticide Control Act of 1971, the Environmental Cleanup Responsibility Act, the Wetlands Act of 1970, the Freshwater Wetlands Protection Act, the Coastal Area Facility Review Act, the Air Pollution Control Act (1954), the Worker and Community Right to Know Act, the Safe Drinking Water Act, the Flood Hazard Area Control Act, the Spill Compensation and Control Act, and the Toxic Catastrophe Prevention Act. This bill does not apply to the Water Pollution Control Act as amendments to that act adopted in 1990 contained publication provisions.

Requires publication of violations of designated environmental statutes and makes an appropriation.