OFFICIAL SITE OF THE STATE OF NEW JERSEYEnforcement Actions
The type of action BEI takes may vary depending on a number of factors including the urgency of action needed, the existence and type of administrative mechanism already in place, the status of the cleanup, current compliance status, and evidence of criminal intent. The following list provides information about the types of enforcement-related actions that are routinely taken by BEI Compliance Managers:
Notice of Violation (NOV) – A NOV provides notice to a person responsible for conducting remediation that the Department believes a violation has occurred. The NOV is intended to warn the person conducting remediation of the violations, in order to provide an opportunity for them to take corrective action, and also to identify those violations, and time periods, pursuant to the Grace Period Law, N.J.S.A. 13:1D-125 et seq. where action can prevent formal enforcement orders and penalties issued by the Department. The NOV does not constitute a formal enforcement order, a final agency action or a final legal determination that a violation has occurred. Therefore, the NOV may not be appealed or contested.
Administrative Order/Notice of Civil Administrative Penalty Assessment (AO/NOCAPA) – An AO/NOCAPA is a formal enforcement action that includes a determination that a violation has occurred, an order to take specific actions to correct the violation, and a demand for payment of a specified penalty amount. Parties receiving an AO/NOCAPA have 20 calendar days to request a hearing in front of an administrative law judge. If a hearing request is not received within 20 days, or is denied for another reason, the AO/NOCAPA becomes a final order.
Notice of Civil Administrative Penalty Assessment (NOCAPA) – A NOCAPA is a formal enforcement action that includes a determination that a violation has occurred, and a demand for payment of a specified penalty amount. NOCAPAs are issued when a violation has been corrected, as a deterrent and punitive measure against future violations. Parties receiving an NOCAPA have 20 calendar days to request a hearing in front of an administrative law judge. If a hearing request is not received within 20 days, or is denied for another reason, the NOCAPA becomes a final order.
Demand for Stipulated Penalties – Certain oversight documents such as administrative consent orders or remediation agreements may contain provisions that stipulate the amount of penalties to be assessed in the event of noncompliance. The parties who have executed these documents have agreed that the determination of whether a violation has occurred shall be made solely by the Department, and these parties have agreed to pay the amount stipulated. As such, when violations occur at sites where remediation is being conducted pursuant to an oversight document that contains stipulated penalties, the Department may issue a demand for stipulated penalties. Since parties who have executed these documents have agreed that the determination of whether a violation has occurred shall be made solely by the Department, a hearing is not necessary or available to contest the Department’s action.
Spill Act Directives – The Spill Compensation and Control Act provides broad authority to the Department to compel responsible parties to conduct remediation. BEI issues several different types of Spill Act Directives. We refer to the first as a “Do the Work” directive. This type of directive requires the receiving party to conduct remediation, and puts the party and their insurer on notice that the Department believes they are responsible for the discharge and that they are liable for treble damages if they fail to comply and the Department conducts the remediation. In circumstances where the party has already indicated an unwillingness to do the work, a lack of available funds, or when the Department does not believe the party capable for other reasons, BEI issues a “Pay Me” directive. The Pay Me directive does not give the party the option to conduct the work but instead directs them to pay for work that the Department intends to conduct, or be subject to treble damages. Finally, when requested by a party who is conducting remediation, BEI may issue a “Treble Damage” directive to other parties who are responsible but who are not participating in the remediation. This allows the party who conducts the remediation to pursue treble damages in a cost recovery action against those non-participating responsible parties who were issued a Spill Act Directive by the Department.
Notice of UST Registration Denial/Revocation (NOD/R) – A NOD/R can be issued, pursuant to N.J.A.C. 7:14B-2.7(b), to an owner/operator of an operating regulated underground storage tank system when that party has failed to comply with any provision of N.J.A.C. 7:14B. BEI issues a NOD/R when an owner/operator of an operating regulated underground storage tank system has failed to comply with the requirements identified at N.J.A.C. 7:14B-7, 8 and 9. A NOD/R is a formal enforcement action that includes a determination that a violation has occurred, a notice of the Department’s denial or revocation the facility’s registration certificate, an order to take specific actions to correct the violation. A NOD/R may also include a Notice of Administrative Penalty Assessment for payment of a specified penalty amount. Parties receiving an NOD/R have 30 calendar days to request a hearing in front of an administrative law judge. A party may submit, with their hearing request, a written request supporting the ongoing need to use the tank and the Department may stay the revocation, for good cause shown, pending the hearing. If a hearing request is not received within 30 days, or is denied for another reason, the NOD/R becomes a final order and the registration certificate is revoked. An owner/operator whose registration is revoked must immediately cease all storage of hazardous substances in the underground storage tank facility and may not place the tanks back into service until the Department issues a new registration certificate after return to compliance with all requirements of N.J.A.C. 7:14B. Until then they must maintain all release detection monitoring and corrosion protection systems and must close the UST system(s) if it remains out of service for a period of greater than 12 months.
Referral to Criminal Justice – Occasionally BEI encounters situations that include evidence that a violation is the result of an intentional, deliberate, purposeful, knowing or willful act or omission. In such circumstances we may refer the matter to the Division of Criminal Justice.