In a September 29, 1995 opinion, a State of NJ, DEP v. Standard Tank Cleaning Corp., et als., a New Jersey court found that a corporate official is personally responsible for penalties based upon violations of the New Jersey Water Pollution Control Act (WPCA) only if the individual was "in control of the events that caused the violation." Holding a position as a corporate official does not, by itself, subject a person to liability. In order to penalize corporate officials as individuals, the NJDEP must show either that the person's position was one of actual responsibility for the events that resulted in the violation, or that the person, by nature of his position, could have prevented the violation but failed to do so. Actual knowledge of the violation may not be necessary if the official was responsible for the activity that gave rise to the violation and should have been aware of that activity. The court also decided that the penalties to be assessed against responsible corporate officials must be based on the individual circumstances surrounding each official's behavior with respect to the violation.
Additionally, the court found that the WPCA does not authorize NJDEP to recover attorneys' litigation fees for prosecuting a WPCA violation. The court found that the WPCA's authorization to recover costs of investigating and litigating a violation does not include counsel fees because those fees are not explicitly included in the authorization.
As a result of this decision, a corporate official who holds a position of authority over discharge activities that are subject to the WPCA, even if he or she does not have daily involvement in those activities, must exercise great caution to ensure that the WPCA is not violated. Otherwise, the corporate official may be exposed to personal liability.
