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13 N.J.A.R. 791

Mobil Chemical Co. v. Environmental Protection, Department of
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Citation: 13 N.J.A.R. 791
Decision Date: 1988
Agency: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Synopsis: The Department of Environmental Protection (DEP) assessed penalties against petitioner following the accidental release into the air of a chemical from petitioner's Edison facility. Petitioner requested a hearing and the matter was transmitted to the Office of Adminis- trative Law. The penalties were based on three violations associated with the incident: (l) failing to promptly notify DEP of the release of the chemical; (2) causing air pollution; and (3) using a piece of equipment that was not operating properly, in violation of petitioner's operating permit. DEP proposed a $10,000 penalty for the notification violation, a $7,500 penalty for the emission violation and $400 for the permit violation. Petitioner did not dispute the facts, but argued that the notification provision was constitutionally invalid, that the penalty schedule should have been promulgated as a rule, that the air pollution regulation was unconstitutionally vague and that the incident did not violate the plant's operating permit. The administrative law judge assigned to the case found that petitioner did violate the notification provision by not contacting DEP until more than an hour after the accident. The judge ruled that the provision was not constitutionally invalid. Regarding penalty, the judge agreed that a DEP penalty schedule should be promulgated as a rule in order to be enforceable, but concluded that the proposed $10,000 penalty was nonetheless authorized by statute. The judge found that petitioner violated the air pollution emission provision and that the provision was not vague. However, the judge reduced the penalty to $2,500 because he said DEP should have considered the minimal effect the emission had on public health and welfare. Finally, the judge dismissed the permit violation because the use of the in- operable pump was operator error; petitioner complied with the operating permit by tagging the pump as not functioning properly. Upon review, this initial decision was adopted in part and modified in part by the Commissioner of Environmental Protection. The Commissioner reinstated the $7,500 penalty for the emission violation, noting that the absence of actual injury to the public is not a reason to assess lesser penalties. Deterrence of future violations is an important factor in setting penalties. The Commissioner also re- instated the penalty for violating the operating permit, holding that the regulation is a strict liability provision. The fact that the violation was caused by operator error does not eliminate petitioner's liability. If inoperative equipment was used, petitioner is liable, regardless of intent or willfulness. All other findings and conclusions of the initial decision were affirmed. William H. Hyatt, Jr., Esq., and William J. Friedman, Esq., for petitioner (Pitney, Hardin, Kipp & Szuch, attorneys) John K. Kelly, Deputy Attorney General, and Michael S. Cato, Deputy Attorney General, for respondent (W. Cary Edwards, At- torney General of New Jersey, attorney)
Rule(s) Cited: 7:27-5.1 7:27-5.2(a) 7:27-8.3(e)2