SRP Enforcement
The Bureau of Enforcement and Investigations (BEI) provides enforcement support for the Site Remediation Program.
BEI staff is encouraged to accommodate good faith efforts at compliance. However, when necessary their jobs include the preparation and issuance of enforcement actions against parties who are responsible for conducting remediation but who fail to do so in a timely manner and/or in accordance with the Technical Requirements for Site Remediation (Tech Rule). Case Managers overseeing cleanup within the various Bureaus in SRP pursue compliance through the issuance of Notices of Deficiency and, if needed Notices of Violation. If violations are not corrected a referral is made to the BEI for issuance of an enforcement action. Similarly Site Managers overseeing remediation being conducted by the Department using public funds rely on BEI to issue Spill Act directives prior to the expenditure of public monies, in order to preserve the Department’s ability to pursue treble damages in cost recovery actions. BEI also works closely with the Division of Law toward satisfactory closure of cost recovery cases and the settlement of administrative 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 oversight 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 taken by SRP Case Managers and Compliance Managers within the BEI.
Notice of Deficiency (NOD) – A NOD is not a formal enforcement action. A NOD is issued by a SRP Case Manager in response to a submittal that fails to comply with the requirements of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E. NOD issuance precedes the applicability of the Grace Period Rule. The consequences for failure to address deficiencies and schedules outlined in the NOD depends on whether the case is a memorandum of agreement (MOA) case or non-MOA case, and on whether the uncorrected deficiency is a minor or non-minor violation.
For non-MOA cases, all deficiencies included in the NOD that are not corrected within the required timeframe are considered to be violations and the Case Manager will include these violations in a Notice of Violation (NOV). Those violations designated as minor will be afforded a grace period for correction of the violation, in accordance with N.J.A.C. 7:26C-10. Those violations designated as non-minor must be corrected immediately. BEI will assess penalties for non-minor violations as well as for minor violations that are not corrected within the grace period.
For MOA cases, all deficiencies included in the NOD that are not corrected within the required timeframe are considered to be violations and the Case Manager will include these violations in a Notice of Intent to Terminate (NOIT). Those violations designated as minor will be afforded a period of time for correction of the violation, consistent with the grace period specified in N.J.A.C. 7:26C-10.4(c), prior to MOA termination. Those violations designated as non-minor must be corrected immediately. If non-minor violations are not corrected immediately MOA termination by the lead Bureau Chief will proceed shortly thereafter.
If a party fails to submit a required document at all, the Case Manager will issue a NOV or NOIT, for all violations, instead of a NOD since no submittal will have been made for the Department to evaluate. If a submittal is made in response to the NOV or NOIT, the Case Manager will review the submittal and issue a NOD for deficiencies. If no submittal is made in response to the NOV or NOIT, penalties or termination will follow.
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.
Notice of Intent to Terminate (NOIT) – A NOIT provides notice to a person conducting remediation pursuant to a memorandum of agreement (MOA) that the Department believes a violation has occurred. The NOIT 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 the termination of the MOA. Language is included that formal enforcement orders and penalties may be issued by the Department subsequent to termination, that payment of oversight costs that accrued prior to termination is still required, and that new MOA applications will be subject to additional costs and considerations. The NOIT does not constitute a formal enforcement order, a final agency action or a final legal determination that a violation has occurred. Therefore, the NOIT may not be appealed or contested.
Compliance Status Notice (CSN) – If, in response to a NOV, administrative order or Spill Act directive, a party submits a document or takes an action in an attempt at compliance, but that submittal or action fails to fully correct the violation(s), the SRP Case Manager will issue a CSN. The CSN is used to advise parties of non-compliance or partial compliance pending the Department’s next action. Issuance of a CSN is necessary considering that there may be a lag time before the next document can be issued or before a hearing is scheduled for penalty matters, and because parties desire confirmation of their compliance status in instances when some violations have been corrected. Note that if all violations have been corrected the Case Manager will not issue a CSN but rather will issue an Approval Letter. The Compliance Status Notice will identify any violations that have been corrected, and will state that the uncorrected violations will be the subject of further enforcement action. Note that if a party comes into compliance at some point after the due date, penalties may still be assessed for the period of non-compliance. The CSN may authorize parties to proceed with specific, limited activities (i.e., receptor evaluation) provided that the activities are not affected by the uncorrected violations. This authorization to proceed does not represent an approval of the submittal.
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, a demand for stipulated penalties may accompany or follow the NOV. 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 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 directed by the Department.
Notice of Intent to Revoke – A NOIR 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 NOIR 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 NOIR is a formal enforcement action that includes a determination that a violation has occurred, a notice of the Department’s intent to revoke the facility’s registration certificate, an order to take specific actions to correct the violation. A NOIR may also include a demand for payment of a specified penalty amount. Parties receiving an NOIR have 30 calendar days to request a hearing in front of an administrative law judge. If a hearing request is not received within 30 days, or is denied for another reason, the NOIR 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 pursuant upon 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 solicit the involvement of the Division of Criminal Justice.
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