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3 N.J.A.R. 339

Kearney Industries; Environmental Protection, Department of v
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Citation: 3 N.J.A.R. 339
Decision Date: 1981
Agency: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Synopsis: The Department of Environmental Protection sought to impose sanctions against Kearney Industries, Inc. for an alleged violation of the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., in that Kearney discharged waste water from a production building floor drain into a septic tank without having obtained the required permit. Kearney did not contest the determination that it discharged waste water containing phenol, a 'hazardous pollutant' as defined by N.J.A.C. 7:14-8.3, without a permit. The company did contend, however, that the Department was without authority to compel the installation of monitoring wells and that the proposed penalty assess- ment of $3,125 was unjustified. The administrative law judge observed that the Water Pollution Control Act provides for the regulation of discharges of pollutants, via a permit system, and also authorizes the Department Commis- sioner to eliminate violations of the act, or of regulations promul- gated thereunder. Specifically, the judge noted that the Commissioner had the power under N.J.S.A. 58:10A-6 to require an individual obtaining a discharge permit to install monitoring equipment and submit monitoring reports to the Commissioner. Given the Commis- sioner's authority to require monitoring in instances where permits are sought and granted, the administrative law judge concluded that it would be anomalous to deny the Commissioner the same power in instances where no permit is sought but an unpermitted discharge is discovered. The judge rejected Kearney's argument that despite the discharge of a pollutant, no useful purpose would be served by the installation of monitoring wells. Noting that where, as here, a company has discharged pollutants in such a way as to threaten the quality of the State's water, the judge concluded that it was not unreasonable for the Department to seek to compel the company responsible to deter- mine whether the waters at the discharge site are polluted. As to the proposed penalty, the administrative law judge noted that no evidence as to the reasonableness of the penalty had been pre- sented to him. After reviewing the record and relying on N.J.A.C. 7:14-8.10(a)6, the judge concluded that a penalty of $1,725 was proper. Paul H. Schneider, Deputy Attorney General for Petitioner (James R. Zazzali, Attorney General of New Jersey, Attorney) Michael V. Keawin, Esq. for Respondent
Rule(s) Cited: 7:14-8.3