N.J. Admin. Code § 7:13-24.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:13-24.6 - Civil administrative penalties for violations other than failure to obtain a permit prior to conducting regulated activities

(a) For violations other than failure to obtain a permit prior to conducting regulated activities, the Department may, in its discretion, assess a civil administrative penalty pursuant to this section of not more than $ 25,000 for each violation of 58:16A-50et seq., or any regulation, rule, permit, condition, or order adopted or issued by the Department pursuant thereto. The Department shall assess penalties under this section rather than under N.J.A.C. 7:13-24.5 when N.J.A.C. 7:13-24.5 is not applicable to the violation.

(b) Each violation of 58:16A-50et seq., or any regulation, rule, permit, condition, or order adopted or issued by the Department pursuant thereto, shall constitute an additional, separate, and distinct violation.

(c) Where any requirement of 58:16A-50et seq., or any regulation, rule, permit, condition, or order adopted or issued by the Department pursuant thereto, may pertain to more than one act, condition, or occurrence, the failure to comply with such requirement as it pertains to each such act, condition, or occurrence shall constitute an additional, separate, and distinct violation.

(d) To assess a civil administrative penalty pursuant to this section, the Department shall use the two factors described at (e) and (f) below, seriousness and conduct, to determine the amount of the base daily civil administrative penalty. The applicable daily penalty amount is determined using the base daily penalty matrix in the table below, based on the seriousness of the violation determined pursuant to (e) below and the conduct of the violator determined pursuant to (f) below.

Table 24.6

Base Daily Penalty Matrix

SERIOUSNESS
Major	Moderate	Minor
CONDUCT	Major	$ 25,000	$ 15,000	$ 10,000
Moderate	$ 15,000	$ 7,500	$ 5,000
Minor	$ 10,000	$ 5,000	$ 1,000

(e) The seriousness of the violation shall be determined as major, moderate, or minor as follows:

1. Major seriousness shall apply to any violation which has caused or has the potential to cause serious harm to human health or safety, property, the environment, or the flood hazard area regulatory program, or seriously deviates from the applicable law and/or condition. "Serious deviations" include, but are not limited to, those violations which are in complete contravention of the law, requirement, and/or condition, and/or which severely impair or undermine the protection, operation, or intent of the law, requirement, or condition. Violations of "major" seriousness include, but are not limited to:

i. Conducting any activity that adversely impacts flooding, flood potential, the flood hazard area habitat for threatened or endangered wildlife or plant species, the pattern of riparian zone vegetation, or water quality;

ii. Placing fill, excavating, and/or grading within the flood hazard area;

iii. Clearing, cutting, and/or removal of vegetation within the riparian zone;

iv. Placing fill, excavating, and grading within the flood hazard area and/or clearing, cutting, and/or removal of vegetation within the riparian zone in excess of that which is authorized by a permit or plan;

v. Conducting regulated activities during a restricted time period identified in Table 11.5, Restricted Time Periods for Regulated Waters with Fishery Resources, at 7:13-11.5;

vi. Failure of a permittee to timely record a conservation restriction or other required instrument, and the property has been sold or transferred; and

vii. Failure of an applicant, permittee, or violator to provide information upon request to determine compliance with any applicable law and/or condition.

2. Moderate seriousness shall apply to any violation which has caused or has the potential to cause substantial harm to human health, safety, or property, the environment, or the flood hazard area regulatory program, or is a substantial deviation from the applicable law and/or condition. "Substantial deviation" includes, but is not limited to, violations which are in substantial contravention of the law, requirement, and/or condition, and/or which substantially impair or undermine the protection, operation, or intent of the law, requirement, and/or condition. Violations of "moderate" seriousness include, but are not limited to:

i. Failure to record a conservation restriction or other required instrument, and the property has not been sold or transferred; and

ii. Failure to properly remediate and restore impacts caused under a terminated permit or approval; and

3. Minor seriousness shall apply to any violation not included in (e)1 or 2 above.

(f) The conduct of the violator shall be determined as major, moderate, or minor as follows:

1. Major conduct shall include any intentional, deliberate, purposeful, knowing, or willful act or omission by the violator. There is a rebuttable presumption that any violation of a Department permit, applicability determination, and/or Tidelands instrument or the conditions thereof to be knowing violations;

2. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator; and

3. Minor conduct shall include any other conduct not included in (f)1 or 2 above.

(g) The total civil administrative penalty shall be the daily civil administrative penalty determined under (d) through (f) above, multiplied by the number of calendar days during which each violation continued or remained in place without the required permit.

(h) Notwithstanding the maximum civil administrative penalty of $ 25,000 pursuant to this subsection, the Department may add to a civil administrative penalty assessed under this subchapter the amount of economic benefit in dollars that the violator has realized as the result of not complying, or by delaying compliance with, an applicable law and/or condition.

N.J. Admin. Code § 7:13-24.6

Adopted by 48 N.J.R. 1067(a), effective 6/20/2016