New Jersey Administrative Code
Title 2 - AGRICULTURE
Chapter 91 - ANIMAL WASTE MANAGEMENT
Subchapter 4 - PENALTIES AND ENFORCEMENT
Section 2:91-4.1 - Penalty and enforcement provisions

Universal Citation: NJ Admin Code 2:91-4.1

Current through Register Vol. 56, No. 18, September 16, 2024

(a) The Department shall investigate alleged violations of the rules and take appropriate action, which may include, but is not limited to, the following:

1. Any person who violates any provision of this chapter, or the requirements of a self-certified AWMP, high-density AWMP or CNMP developed pursuant to this chapter, shall be liable for a civil administrative penalty of up to $ 1,000 per day for each violation as determined pursuant to the procedures set forth in this section.

2. Where non-compliance is found, the Department may allow the owner or operator up to 60 days to address or correct the non-compliance before imposing a civil administrative penalty. The length of time available to correct the non-compliance shall be based on the following factors:
i. Inability to perform the corrective action due to circumstances beyond the persons control, including but not limited to weather conditions, need for professional assistance and need for special machinery to complete the corrective action;

ii. Whether temporary corrective action can mitigate the non-compliance;

iii. The severity of the non-compliance based upon the point system as set forth in (c) below;

iv. The severity of the environmental impact caused by the non-compliance; and

v. Any other mitigating factor.

(b) If a self-certified AWMP, high-density AWMP or CNMP has been developed but not fully implemented, the Department shall determine the status of compliance with this chapter. Where non-compliance is found, the Department shall issue a civil administrative penalty in accordance with (c) below.

(c) The Department shall use the factors described below to determine the amount of a civil administrative penalty under this section. The standards below assign each violation a point value. The total number of points is used to determine the penalty amount per day for each violation. The factors, and the point values assigned to them, are as follows:

1. The seriousness of the violation shall be classified as major, moderate or minor and assigned points as follows:
i. Major conduct shall include an intentional, deliberate, purposeful, knowing or willful act or omission by the violator and is assigned three points;

ii. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator and is assigned two points; and

iii. Minor conduct shall include any conduct not identified in (c)1i or ii above and is assigned one point.

2. The management plan type shall be assigned points as follows:
i. A violation impacting a self-certified AWMP is assigned one point;

ii. A violation impacting a high-density AWMP is assigned two points; and

iii. A violation impacting a CNMP is assigned three points.

(d) The Department shall sum the total points assigned according to the factors in (c) above, and shall determine the penalty amount per day using the following table:

Penalty Points TableMaximum Penalty Amount
Total PointsPer Day
2$ 250
3$ 500
4$ 750
5 or more$ 1,000

(e) If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense.

(f) For a violation under this section, the Department may adjust up or down the daily civil administrative penalty amount based on the following factors:

1. The violator's compliance history;

2. The nature, timing and effectiveness of measures the violator takes to mitigate the effects of the violation;

3. The nature, timing and effectiveness of measures the violator takes to prevent future similar violations;

4. Any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation; and/or

5. Other specific circumstances of the violator or violation.

(g) No assessment shall be levied until after the party has been notified by certified mail or personal service and has been provided an opportunity for a hearing as outlined in (j) below.

(h) Any amount assessed shall take into account the seriousness and duration of the violation and whether the violation involves the failure to develop or to implement a self-certified AWMP, high-density AWMP or CNMP and shall also provide for an enhanced penalty of double the amount of the original penalty if the violation causes an impairment to water quality as determined by the Department using the criteria set forth in 7:9B-1.1 4 and 7:9C-1.7. Any civil administrative penalty assessed under this section may be compromised by the Secretary of Agriculture upon the posting of a performance bond by the violator, or upon such terms and conditions as the Secretary in consultation with the State Board of Agriculture may establish.

(i) Any person who fails to pay a civil administrative penalty in full shall be subject, upon order of a court, to a civil penalty of up to $ 1,000 for each violation. Each day that the person fails to pay the penalty shall constitute an additional, separate, and distinct offense. Any such civil penalty imposed may be collected with costs in a summary proceeding pursuant to the Penalty Enforcement Law of 1999, P.L. 1999, c. 274 (2A:58-10 et seq.).

(j) Anyone who is aggrieved by a determination pursuant to this section shall, upon written request transmitted to the Department within 20 days of that determination, be afforded the opportunity for a hearing thereon in the manner provided for contested cases pursuant to the Administrative Procedure Act, 52:14B-1 et seq., and the Uniform Administrative Procedure Rules N.J.A.C. 1:1.

1. Requests for hearings shall be sent to Director, Division of Agricultural and Natural Resources, N.J. Department of Agriculture, P.O. Box 330, Trenton, New Jersey 08625-0330.

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