S151

SENATE, No. 151

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Senators LaROSSA and INVERSO

An Act eliminating the authority of the Department of Environmental Protection to impose civil administrative penalties, and amending and repealing parts of the statutory law.

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

1. Section 15 of P.L.1991, c.235 (C.13:1D-49) is amended to read as follows:

15. a. Whenever, on the basis of information available to the commissioner, the commissioner finds that a person is in violation of this act, the commissioner shall:

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

(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] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

(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 the commissioner, the commissioner finds that a person is in violation of this act, the commissioner may issue an order (1) specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation; (2) citing the action that caused the violation; (3) requiring compliance with the provision of this act or the rule or regulation adopted pursuant thereto of which the person is in violation; 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 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 that led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d.[(1) The commissioner is authorized to impose a civil administrative penalty of not more than $15,000 for each violation, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount imposed under this subsection shall be assessed pursuant to rules and regulations adopted by the commissioner for violations of similar type, seriousness, and duration. The commissioner shall have the authority to assess penalties prior to the establishment of rules and regulations governing penalties to the extent that such penalties are reasonable and based on other violations of a similar type, seriousness, and duration. No civil administrative penalty shall be imposed until after the person has been notified by certified mail or personal service. The notice shall include: a reference to the section of the act, rule, regulation, order, or permit 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 person's right to a hearing. The person 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 or civil administrative penalty after imposing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order or a final civil administrative penalty 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 or a final civil administrative penalty. 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 subsection may be compromised by the commissioner upon the posting of a performance bond by the violator, or upon terms and conditions the commissioner may establish by rule or regulation.

(2) 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 the reasonable costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

e. Any person 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 $15,000 for each day during which the violation continues. 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 and the municipal court shall have jurisdiction to enforce "the penalty enforcement law."

f. Any violation of a pollution prevention condition of a facility-wide permit issued pursuant to this act shall be considered a violation of P.L.1970, c.33 (C.13:1D-1 et seq.), P.L.1970, c.39 (C.13:1E-1 et seq.), P.L.1977, c.74 (C.58:10A-1 et seq.), or P.L.1954, c.212 (C.26:2C-1 et seq.), as the department deems appropriate.

(cf: P.L.1991, c.235, s.15)

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

9. a. All codes, rules [and] or regulations adopted by the department related to solid waste collection [and] or disposal shall have the force and effect of law. These codes, rules [and] or 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] or regulations adopted pursuant thereto.

The municipal attorney or an attorney retained by a municipality in which a violation of [such] the laws or rules [and] or 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] the laws or rules [and] or 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] the county. The fees shall be established in accordance with a fee schedule rule or regulation adopted by the department, pursuant to law, and shall be utilized exclusively to fund [such] the 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;] (Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(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 g. of this section.

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. 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 adopted, permit issued, district solid waste management plan adopted or order issued pursuant to this act and [said] the 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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

f. Any person who violates the provisions of P.L.1970, c.39, or any code, rule or regulation adopted pursuant 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.

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

3. Section 20 of P.L.1989, c.34 (C.13:1E-48.20) is amended to read as follows:

20. a. This act, [and] or any rule or regulation adopted pursuant thereto, shall be enforced by the departments and by every local board of health, or county health department, as the case may be.

The departments and the local board of health, or the county health department, as the case may be, shall have the right to enter the premises of a generator, transporter, or facility at any time in order to determine compliance with this act.

The municipal attorney or an attorney retained by a municipality in which a violation of this act 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 this act is alleged to have occurred shall act as counsel to the county health department.

b. Whenever the Commissioner of Environmental Protection or the Commissioner of Health finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, that commissioner 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;] (Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(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 subsections g. through l. 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 of Environmental Protection or the Commissioner of Health finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, that commissioner may issue an order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, ordering abatement of the violation, and giving notice to the person of the person's right to a hearing on the matters contained in the order. The ordered party shall have 20 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, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.

d. The Commissioner of Environmental Protection, the Commissioner of Health, a local board of health, or a 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 rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.

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 that 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 environmental quality or public health resulting from any violation of this act, or any rule or regulation adopted pursuant thereto, 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 or regulation adopted pursuant thereto, 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 commissioners in the same manner as if the commissioners were named parties to the action or proceeding. Either of the departments may intervene as a matter of right in any proceeding brought by a local board of health or county health department.

e. [Either of the commissioners, as the case may be, may assess a civil administrative penalty of not more than $50,000 for each violation. Each day that a violation continues shall constitute an additional, separate, and distinct offense. A commissioner may not assess a civil administrative penalty in excess of $25,000 for a single violation, or in excess of $2,500 for each day during which a violation continues, until the departments have respectively adopted, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), regulations requiring the appropriate commissioner, in assessing a civil administrative penalty, to consider the operational history of the violator, 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 may 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, 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 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 appropriate commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, that 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 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. Each department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

f. A person who violates this act, or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $50,000 per day, to be collected in a civil action commenced by the Commissioner of Environmental Protection, the Commissioner of Health, a local board of health, or a county health department.

A 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 per day of each violation.

Of the penalty imposed pursuant to this subsection, 10% or $250, whichever is greater, shall be paid to the appropriate department from the General Fund if the Attorney General determines that a person is entitled to a reward pursuant to section 24 of [this act] P.L.1989, c.34 (C.13:1E-48.24).

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. A person who purposely or knowingly:

(1) disposes or stores regulated medical waste without authorization from either the Department of Environmental Protection or the Department of Health, as appropriate, or in violation of this act, or any rule or regulation adopted pursuant thereto;

(2) makes any false or misleading statement to any person who prepares any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto;

(3) makes any false or misleading statement on any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto; or

(4) fails to properly treat certain types of regulated medical waste designated by the Department of Health in a prescribed manner; 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 for the first offense, and not more than $100,000 for each subsequent offense, and restitution, in addition to any other appropriate disposition authorized by subsection b. of N.J.S. 2C:43-2.

h. A person who recklessly or negligently:

(4) fails to properly treat certain types of regulated medical waste designated by the Department of Health in a manner prescribed thereby; shall, upon conviction, be guilty of a crime of the fourth degree.

i. A person who, regardless of intent:

(1) transports any regulated medical waste to a facility or any other place in the State that does not have authorization from the Department of Environmental Protection [and the Board of Public Utilities] to accept such waste, or in violation of this act, or any rule or regulation adopted pursuant thereto; or

(2) transports, or receives transported, regulated medical waste without completing and submitting a manifest in accordance with this act, or any rule or regulation adopted pursuant thereto; shall, upon conviction, be guilty of a crime of the fourth degree.

j. A person who purposely, knowingly, or recklessly:

(1) generates and causes or permits to be transported any regulated medical waste to a facility or any other place in the State that does not have authorization from the Department of Environmental Protection [and the Board of Public Utilities] to accept such waste, or in violation of this act, or any rule or regulation adopted pursuant thereto; or

(2) violates any other provision of this act, or any rule or regulation adopted pursuant thereto, for which no other criminal penalty has been specifically provided for; shall, upon conviction, be guilty of a crime of the fourth degree.

k. All conveyances used or intended for use in the willful discharge, in violation of this act, or any rule or regulation adopted pursuant thereto, of regulated medical waste are subject to forfeiture to the State pursuant to P.L. 1981, c. 387 (C. 13:1K-1 et seq.).

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

m. No prosecution for a violation under this act shall be deemed to preclude a prosecution for the violation of any other applicable statute.

(cf: P.L.1989, c.34, s.20)

4. Section 11 of P.L.1991, c.520 (C.13:1E-99.54) is amended to read as follows:

11. a. Whenever the commissioner finds that a person has violated any provision of this act, or any rule or regulation adopted pursuant thereto, the commissioner may:

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

(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;] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

(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 g. of this section.

Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.

b. Whenever the commissioner finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, ordering abatement of the violation, and giving notice to the person of the person's right to a hearing on the matters contained in the order. The ordered person 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, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.

c. The commissioner may institute an action or proceeding in the Superior Court for injunctive and other relief to enforce the provisions of this act and to prohibit and prevent a violation of this act, or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.

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 inspection, including the costs of any sampling or testing of packages or packaging components that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d. [(1) The commissioner may assess a civil administrative penalty of not more than $7,500.00 for a first offense, not more than $10,000.00 for a second offense and not more than $25,000.00 for a third and every subsequent offense. Each day that a violation continues shall constitute an additional, separate, and distinct offense.

No assessment may 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, 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 person's right to a hearing. The ordered person 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 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. The department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate.

(2) The commissioner may not assess a civil administrative penalty for a first offense for any violation of the provisions of this act, or of any rule or regulation adopted pursuant thereto, except in those instances where an ordered person violates an administrative order issued pursuant to subsection b. of section 10 of this act.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

e. (1) A person who violates this act, or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $7,500.00 per day, to be collected in a civil action commenced by the commissioner.

(2) The commissioner may not bring an action for a civil penalty for a first offense for any violation of the provisions of this act, or of any rule or regulation adopted pursuant thereto, except in those instances where an ordered person violates an administrative order issued pursuant to subsection b. of section 10 of this act.

A person who violates an administrative 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 an administrative assessment in full pursuant to subsection d. of this section] is subject upon order of a court to a civil penalty not to exceed $50,000.00 per day of each violation.

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.

f. Assessments and penalties under this section shall be paid to the department and deposited into the "Toxic Packaging Reduction Fund" established pursuant to section 12 of [this act] P.L.1991, c.520 (C.13:1E-99.55).

g. Any person who purposely or knowingly:

(1) sells, offers for sale, or offers for promotional purposes any package or packaging component in violation of subsection a. of section 4 of [this act] P.L.1991, c.520 (C.13:1E-99.47), or of any rule or regulation adopted pursuant thereto;

(2) sells, offers for sale, or offers for promotional purposes any product in violation of subsection b. of section 4 of [this act] P.L.1991, c.520 (C.13:1E-99.47), or of any rule or regulation adopted pursuant thereto; or

(3) sells, offers for sale, or offers for promotional purposes any package or packaging component that exceeds the maximum contaminant levels set forth in subsection c. of section 4 of [this act] P.L.1991, c.520 (C.13:1E-99.47); 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 less than $7,500.00 for a first offense, not more than $10,000.00 for a second offense and not more than $25,000.00 for a third and every subsequent offense. Each day during which the violation continues constitutes an additional, separate and distinct offense.

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

i. No retailer shall be deemed to have violated the provisions of section 4 of [this act] P.L.1991, c.520 (C.13:1E-99.47), if the commissioner finds that the retailer can demonstrate that, in the purchase of a specified package or packaging component, the retailer relied in good faith on the written assurance of the product manufacturer or distributor that the package or packaging component complied with the provisions of this act. The written assurance shall state that a specified package or packaging component is in compliance with the provisions of this act, and shall be signed by an authorized representative of the package manufacturer or distributor. If an exemption is claimed for the package or packaging component pursuant to subsection b. of section 5 of [this act] P.L.1991, c.520 (C.13:1E-99.48), the written assurance shall state the specific basis upon which the exemption is claimed.

(cf: P.L.1991, c.520, s.11)

5. 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.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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)

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] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill); 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.] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

e. A person who violates this act, an administrative order issued pursuant to subsection b., or a court order issued pursuant to subsection c., [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 previolation 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 has 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 degree 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 implementing 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.

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

7. Section 14 of P.L.1954, c.212 (C.26:2C-14) is amended to read as follows:

14. Whenever the department has cause to believe that any person is violating any code, rule or regulation promulgated by the department, the department shall cause a prompt investigation to be made in connection therewith.

If upon inspection the department discovers a condition which is in violation of the provisions of this act or any code, rule or regulation promulgated pursuant thereto, it shall be authorized to order such violation to cease and to take such steps necessary to enforce such an order. The order to cease the violation issued by the commissioner and sent to the violator by certified mail or personal service shall include a reference to the section of the statute, regulation, order, or permit condition violated; [the amount of the fine which shall be imposed;]a concise statement of the facts alleged to constitute the violation; and a statement of the right of the violator to a hearing.

The person responsible shall make the corrections necessary to comply with the requirements of this act or code, rule or regulation promulgated pursuant thereto within the time specified in the order.

Nothing herein shall be deemed to prevent the department from prosecuting any violation of this act or any code, rule or regulation promulgated pursuant thereto, notwithstanding that such violation is corrected in accordance with its order.

(cf: P.L.1985, c.12, s.2)

8. Section 9 of P.L.1962, c.215 (C.26:2C-14.1) is amended to read as follows:

9. Any person aggrieved by an order of the department has 20 days from receipt of the order within which to deliver to the commissioner a written request for a hearing. Subsequent to the hearing, if requested, and upon a finding that a violation has occurred, the commissioner may issue a final order to cease the violation [and assessing the amount of the fine specified in the order]. If no hearing is requested, the order is 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 order becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L.1954, c.212 (C. 26:2C-1 et seq.), and the payment of a civil administrative penalty does not affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.]Pending the determination by the department and upon application therefor the department may stay the operation of such order upon such terms and conditions as it may deem proper.

(cf: P.L.1985, c.12, s.3)

9. 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 P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation or order adopted 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 such violation or violations and the court may proceed in the action in a summary manner.

b. [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 adopted or issued pursuant thereto shall be liable to 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. 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).](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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 adopted or issued pursuant thereto, 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 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. 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 adopted or issued pursuant thereto, is guilty of a crime of the third degree;

(2) purposely or knowingly violates any federally mandated air pollution control requirement, any operating permit condition, or any fee or filing requirement imposed in connection with an operating permit is guilty of a crime of the third degree, the sentence for which may include, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, an enhanced fine of $10,000 per day per violation;

(3) purposely or knowingly makes any false material statement, representation, or certification in any form, notice, statement, or report required in connection with an operating permit, or who purposely or knowingly renders inaccurate any monitoring device or method required by an operating permit, is guilty of a crime of the third degree, the sentence for which may include, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, an enhanced fine of $10,000 per day per violation;

(4) 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 adopted or issued pursuant thereto, is guilty of a crime of the fourth degree.

g. In determining whether an odor unreasonably interferes with the enjoyment of life or property in violation of P.L.1954, c.212 (C.26:2C-1 et seq.) or any code, rule, regulation or order adopted or issued pursuant thereto, the department shall consider all of the relevant facts and circumstances, including, but not limited to, the character, severity, frequency, and duration of the odor, and the number of persons affected thereby. In considering these and other relevant facts and circumstances, no one factor shall be dispositive, but each shall be considered relevant in determining whether an odor interferes with the enjoyment of life or property, and, if so, whether such interference is unreasonable considering all of the circumstances.

The department shall publish in the New Jersey Register the guidelines and procedures utilized by the department for the investigation of citizen complaints regarding odors.

h. The department shall establish procedures for alternative dispute resolution as an option for settlement of contested cases. Alternative dispute resolution shall be voluntary and shall not be mandated by the department.

(cf: P.L.1995,c. 188, s.9)

10. 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; or

(3) [Levy a civil administrative penalty in accordance with subsection d. of this section; or] (Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

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."

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

11. 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; or

[(b) levy a civil administrative penalty in accordance with subsection c. of this section; or] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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.] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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.)

12. Section 2 of P.L.1990, c. 75 (C.58:10-23.11u1) is amended to read as follows:

2. In addition to the penalties, charges, or other liabilities imposed pursuant to the provisions of P.L.1976, c.141 (C.58:10-23.11et seq.), any person whose intentional or unintentional act or omission proximately results in an unauthorized releasing, spilling, pumping, pouring, emitting, emptying, or dumping of 100,000 gallons or more of a hazardous substance, or combination of hazardous substances,into the waters or onto the lands of the State, or entering the lands or waters of the State from a discharge occurring outside thejurisdiction of the State, is liable to a [civil administrative penalty or] civil penalty of not more than $10,000,000, to be collected in accordance with the procedures set forth in section 22 of P.L.1976,c.141 (C.58:10-23.11u). The penalty provisions of this section are in addition to assessments authorized by law for costs incurred by theState or local governmental agencies in the cleanup and removal of an unauthorized release or discharge, including supervision or oversight of the violator's cleanup activities, or compensation or damages recoverable for the loss of wildlife or destruction of theenvironment, and the restoration thereof. In assessing a penalty pursuant to this section, the [department] court shall take into account the circumstances of the discharge, the conduct and culpability of the discharger, or both, prior to, during, and after the discharge, and the extent of the harm resulting from the discharge to persons, property, wildlife, or natural resources.

The provisions of this section shall not apply to any discharge which is contained in a containment area or areas approved by, or otherwise meeting the requirements of, the department, or which containment area is designed to, and reasonably capable of preventing the hazardous substance from entering the waters of the State or otherwise entering the lands of the State, except where 100,000 or more gallons of one or more hazardous substances escape beyond the containment area.

(cf: P.L.1990, c.75, s.2)

13. Section 10 of P.L.1977, c.74 (C.58:10A-10) is amended to read as follows:

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] (Deleted by amendment, P.L. c. )(pending in the Legislature as this bill)

(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.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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.

(cf: P.L.1990, c.28, s.5)

14. Section 2 of P.L.1993, c.351 (C.58:10A-10.11) is amended to read as follows:

2. a. A permittee shall be entitled to an affirmative defense against liability for any penalty assessable pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) [or section 6 of P.L.1990, c.28 (C.58:10A-10.1)]for a violation of an effluent limitation of a permit issued pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), which violation:

(1) occurs in the course of a permitted groundwater remedial action;

(2) is the first violation of that permit limitation; and

(3) involves an exceedance of a permit limitation that could not reasonably have been anticipated by the permittee, unless it is established by a preponderance of the evidence that the violation was the result of a negligent act or omission of the permittee.

Demonstration that an act or omission of a person performing groundwater remedial action accorded with generally accepted remedial action practices, and utilized the best technology reasonably available to the permittee for the approved remedial action at the time of the action, shall create a rebuttable presumption that the act or omission was not negligent.

b. An affirmative defense claim filed pursuant to subsection a. of this section shall be denied by the Department of Environmental Protection or a delegated local agency, as defined in section 3 of P.L.1977, c.74 (C.58:10A-3), as appropriate, if:

(1) the equipment used in the remedial action had not been properly maintained or was not being properly operated at the time of the violation, and the failure to properly maintain or operate the equipment was the proximate cause of the exceedance;

(2) the permittee fails, as required by law or rule or regulation, to provide in a prompt manner to the department or a delegated local agency:

(a) notification of the violation; and

(b) written information on the nature and extent of the permit exceedance and, if known, the reasons therefor;

(3) the permittee fails to take immediate measures, upon first becoming aware of the violation, to terminate the violation and to abate any adverse consequences therefrom; or

(4) the permittee fails to file with the department or delegated local agency a remedial action protocol, setting forth the procedures to be followed to prevent a recurrence of the exceedance.

c. A determination by the department or delegated local agency on an affirmative defense claim made pursuant to subsection a. of this section shall be considered final agency action on the matter for purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and paragraph (5) of subsection d. of section 10 of P.L.1977, c.74 (C.58:10A-10).

d. [If the department approves an affirmative defense claim filed pursuant to subsection a. of this section, the permit exceedance shall not be considered a violation for the purposes of designating a person as a significant noncomplier under section 6 of P.L.1990, c.28 (C.58:10A-10.1).](Deleted by amendment, P.L. , c. ) (pending the Legislature as this bill)

e. Nothing in this section shall be construed to limit the authority of the department to adopt regulations or permit conditions for groundwater remedial actions that exempt a violation for which an affirmative defense claim may be filed pursuant to the provisions of this section, or for exceedances of one or more permit parameters occurring during the start-up phase of a remedial action, as defined in a permit.

As used in this section "groundwater remedial action" means the removal or abatement of one or more pollutants in a groundwater source.

(cf: P.L.1993, c.351, s.2)

15. Section 10 of P.L.1990, c.28 (C.58:10A-14.2) is amended to read as follows:

10. a. The annual report provided pursuant to section 9 of P.L.1990, c.28 (C.58:10A-14.1) shall include, but need not be limited to, the following information for the preceding calendar year:

(1) the number of facilities permitted by the department or delegated local agencies pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.) as of the end of the calendar year, by surface water discharge permits;

(2) the number of new permits or permit renewals issued;

(3) the number of permit approvals contested by a permittee or other party;

(4) the number of permit modifications, other than permit renewals;

(5) the number of schedules of compliance adopted pursuant to administrative orders or administrative consent agreements involving interim enforcement limits that relax permit limitations;

(6) the number of facilities, including publicly owned treatment works, inspected at least once by the department or local agencies;

(7) the number of enforcement actions resulting from facility inspections;

(8) the number of actual permit violations;

(9) the number of actual effluent violations constituting serious violations, including violations that are being contested;

(10) [the number of defenses for upsets, bypasses or testing or laboratory errors granted pursuant to section 7 of P.L.1990, c.28 (C.58:10A-10.2) that involved a serious violation;] (Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

(11) the number of permittees qualifying as significant noncompliers, including permittees contesting such designation;

(12) the number of unpermitted discharges;

(13) the number of pass throughs of pollutants;

(14) the number of enforcement orders--administrative and judicial--issued for violations;

(15) the number of violations for which civil penalties [or civil administrative penalties] have been assessed;

(16) the number of violations of administrative orders or administrative consent orders, including violations of interim enforcement limits, or of schedule of compliance milestones for starting or completing construction, or for failing to attain full compliance;

(17) the number of violations of schedules of compliance milestones for starting or completing construction, or attaining full compliance, that are out of compliance by 90 days or more from the date established in the compliance schedule;

(18) the dollar amount of all assessed civil penalties [and civil administrative penalties];

(19) the dollar amount of enforcement costs recovered in a civil action [or civil administrative action] from a violator;

(20) the dollar amount of [civil administrative penalties and] civil penalties collected, including penalties for which a penalty schedule has been agreed to by the violator;

(21) The specific purposes for which penalty monies collected have been expended, displayed in line-item format by type of expenditure and including, but not limited to, position numbers and titles funded in whole or in part from these penalty monies; and

(22) the number of criminal actions filed by the Attorney General or county prosecutors pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10).

b. In addition to the information required pursuant to subsection a. of this section, the report shall:

(1) list the trade name of each permittee determined to be a significant noncomplier by the department or delegated local agency, and the address and permit number of the facility at which the violations occurred, and provide a brief description and the date of each violation, and the date that the violation was resolved, as well as the total number of violations committed by the permittee during the year;

(2) list the trade name of each permittee who is at least six months behind in the construction phase of a compliance schedule, as well as the address and permit number of the facility, and provide a brief description of the conditions violated and the cause of delay;

(3) list the trade name, address and permit number, of each permittee who has been convicted of criminal conduct pursuant to subsection f. of section 10 of P.L.1977, c.74 (C.58:10A-10), or who has had any officer or employee convicted thereunder, and provide a brief description and the date of the violation or violations for which convicted;

(4) list the name and location of any local agency that has failed to file with the department information required by section 11 of P.L.1990, c.28 (C.58:10A-14.3; and

(5) provide a summary assessment of the water quality of surface and ground waters affected by discharges subject to regulation pursuant to P.L.1977, c.74 to the extent that such information is not otherwise required to be submitted to the United States Environmental Protection Agency.

c. The department may include in the report any other information it determines would provide a fuller profile of the implementation and enforcement of P.L.1977, c.74. The department shall also include in the report any information that may be requested, in writing, not later than November 30 of the preceding year, for inclusion in the annual report, by the Assembly [Environmental Quality] Environment and Energy Committee or the Senate [Environmental Quality] Environment Committee, or their successors.

(cf: P.L.1990, c.28, s.10)

16. Section 12 of P.L.1990, c.28 (C.58:10A-14.4) is amended to read as follows:

12. There is created, in the Department of Environmental Protection, a special nonlapsing fund, to be known as the "Clean Water Enforcement Fund." Except as otherwise provided in P.L.1989, c.122, all monies from penalties, fines, or recoveries of costs or improper economic benefits collected by the department pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) on and after the effective date of this section[, or section 6 of P.L.1990, c.28 (C.58:10A-10.1)]shall be deposited in the fund. Unless otherwise specifically provided by law, monies in the fund shall be utilized exclusively by the department for enforcement and implementation of the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) and P.L.1990, c.28 (C.58:10A-10.1 et al.). Any unobligated monies in the fund at the end of each fiscal year or monies not required for enforcement purposes in the next fiscal year shall be transferred to the "Wastewater Treatment Fund" established pursuant to subsection a. of section 15 of P.L.1985, c.329, for use in accordance with the provisions of that act.

(cf: P.L.1990, c.28, s.12)

17. Section 13 of P.L.1990, c.28 (C.58:10A-14.5) is amended to read as follows:

13. There is created in the Department of Environmental Protection a special nonlapsing account, to be known as the "Wastewater Treatment Operators' Training Account." Monies deposited in the account shall be used to provide training, including continuing education, courses for wastewater treatment operators. A court shall order to be deposited into the account 10% of the amount of any penalty assessed and collected in an action brought by a local agency pursuant to section 10 of P.L.1977, c.74 (C.58:10A-10) [or section 6 of P.L.1990, c.28 (C.58:10A-10.1),]or by a public entity pursuant to section 7 of P.L.1972, c.42 (C.58:11-55).

(cf: P.L.1990, c.28, s.13)

18. Section 6 of P.L.1991, c.123 (C.58:10A-24.6 ) is amended to read as follows:

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

b. [Any person who violates the provisions of this act, or any rule or regulation adopted, or order issued, hereunder, is liable to a civil administrative penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day of violation subsequent to receipt of an order to cease the violation 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 penalty to be imposed; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of notice within which to deliver to the department a written request for a hearing. Subsequent to the hearing and upon a finding that a violation has occurred, the department may issue a final order assessing the amount of the penalty. 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. Agreement to, or 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.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

c. Any person who violates the provisions of this act, is liable to a civil penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. Any person violating [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 when due and owing as provided in subsection b. of this section,]is subject to a civil penalty not to exceed $25,000 per day of the violation. Each day's continuance of a 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 Law Division of the Superior Court shall have jurisdiction to enforce "the penalty enforcement law."

d. The department may compromise and settle any claim for a penalty under this section in such amount as the department may determine to be appropriate and equitable under all of the circumstances.

e. Any person who fails to contest or to pay, in whole or in part, a penalty imposed pursuant to this section, or who fails to agree to a payment schedule therefor, within 30 days of the date that the penalty is due and owing, shall be subject to an interest charge on the amount of the penalty from the date that the amount 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.

f. The penalty provisions of this section shall be in addition to such penalties as may be assessable pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32) for violations of that act.

g. All penalties, monies, and any interest thereon, assessed and collected pursuant to this section shall be deposited into the "New Jersey Spill Compensation Fund," established pursuant to section 10 of P.L.1976, c.141 (C.58:10-23.11i) for use for any of the authorized purposes of the fund. The provisions of this subsection shall not apply to penalties assessed and collected pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32).

(cf: P.L.1991, c.123, s.6)

19. Section 7 of P.L.1972, c.42 (C.58:11-55) is amended to read as follows:

7. a. Any person, corporation, or municipality who shall violate any of the provisions of this act or any rules or regulations promulgated thereunder shall be subject to the applicable provisions of section 10 of P.L.1977, c.74 (C.58:10A-10) [and section 6 of P.L.1990, c.28 (C. 58:10A-10.1)], 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 "the penalty enforcement law".

b. A public entity operating and controlling a public sewage treatment plant shall, in accordance with subsection a. of this section, enforce any applicable pretreatment standard adopted by the public entity pursuant to section 9 of P.L.1972, c.42 (C.58:11-57), or shall obtain injunctive relief against a violation or threatened violation of a pretreatment standard. A public entity operating and controlling a public sewage treatment plant with pretreatment standards adopted by the commissioner pursuant to section 3 of P.L.1972, c.42 (C.58:11-51), may enforce applicable pretreatment standards in accordance with subsection a. of this section, or obtain injunctive relief as provided in this subsection. The action shall be brought in the name of the local public entity. Of the amount of any penalty assessed and collected pursuant to subsection a. of this section, 10% shall be deposited in the "Wastewater Treatment Operators' Training Account," established in accordance with section 13 of P.L.1990, c.28 (C.58:10A-14.5), and used to finance the cost of training operators of public sewage treatment plants. The remainder shall be used by the local agency solely for enforcement purposes, and for upgrading treatment works.

(cf: P.L.1990, c.28, s.18.)

20. Section 8 of P.L.1983, c.230 (C.58:11-71) is amended to read as follows:

8. a. If any person violates any of the provisions of this act, or any operating requirements, the department may institute a civil action in a court of competent jurisdiction for injunctive relief to enforce said provisions and to prohibit and prevent that violation and the court may proceed in the action in a summary manner.

b. [Any person who violates or causes the violation of any of the provisions of this act or any operating requirements shall be liable to a civil administrative penalty of not more than $5,000.00 for each offense to be imposed by the department pursuant to standards adopted in regulations, or a civil penalty of not more than $5,000.00 for each offense. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate and distinct offense.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

c. The department may recover in any civil action the State's reasonable costs of preparing and litigating the civil action pursuant to this act.

d. Any and all penalties prescribed by any provisions of this act may be recovered in a civil action by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce the penalty enforcement law.

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

f. All penalties received pursuant to the provisions of this act shall be paid into the "Environmental Services Fund" created by P.L.1975, c.232 (C.13:1D-29 et seq.), and expended for the functions authorized herein.

(cf: P.L.1991, c.91, s.530)

21. 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.](Deleted by amendment, P.L. , c. ) (pending in the Legislature as this bill)

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)

22. The following are repealed:

Section 6 of P.L.1990, c.28 (C.58:10A-10.1);

Section 7 of P.L.1990, c.28 (C.58:10A-10.2);

Section 2 of P.L.1991, c.8 (C.58:10A-10.5);

Section 3 of P.L.1991, c.8 (C.58:10A-10.6);

Section 4 of P.L.1991, c.8 (C.58:10A-10.7);

Section 5 of P.L.1991, c.8 (C.58:10A-10.8);

Section 6 of P.L.1991, c.8 (C.58:10A-10.9).

23. This act shall take effect immediately, except that any civil administrative penalty assessed by the Department of Environmental Protection prior to the effective date of this act pursuant to any act or provision of any act amended or repealed in this act shall be due and payable in the manner provided by law at the time the civil administrative penalty was assessed.

STATEMENT

This bill would eliminate the authority of the Department of Environmental Protection to assess civil administrative penalties pursuant to the following environmental laws: the "Pollution Prevention Act," P.L.1991, c.235 (C.13:1D-35 et seq.); the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et al.); the "Toxic Packaging Reduction Act," P.L.1991, c.520 (C.13:1E-99.44 et seq.); the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.); the "Worker and Community Right To Know Act," P.L.1983, c.315 (C.34:5A-1 et al.); the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) and by reference, P.L.1981, c.253 (regulating the sale and use of sewage system cleaners), P.L.1986, c.102 (regulating underground storage tanks), and P.L.1954, c.199 ("The Realty Improvement Sewerage and Facilities Act (1954)"); P.L.1990, c.28 (the "Clean Water Enforcement Act"); P.L.1991, c.8 (C.58:10A-10.4 et seq.); P.L.1991, c.123 (C.58:10A-24.1 et seq.); P.L.1972, c.42 (C.58:11-49 et seq.); the "Water Supply and Wastewater Operators' Licensing Act," P.L.1983, c.230 (C.58:11-64 et seq.); and the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.). The effect of this bill would be to require the department to seek a civil penalty in Superior or municipal court, as provided in the statute, for a civil violation of any of these environmental statutes. This bill would not affect the enforcement of criminal violations of these statutes. The bill also prohibits delegated local agencies from imposing civil administrative penalties pursuant to the "Water Pollution Control Act."

Eliminates authority of DEP to impose civil administrative penalties.