Current through Register Vol. 56, No. 18, September 16, 2024
(a) For violations other than failure to
obtain a permit prior to conducting regulated activities, the Department shall
use the procedures in this section to determine the amount of the penalty,
except if the violation type is listed at N.J.A.C. 7:7A-22.9, 22.10, or 22.11,
in which case the penalty amount shall be determined under whichever of those
sections applies.
(b) Each
violation of N.J.S.A. 13:9B-1 et seq.
or 58:10A-1 et seq., or any regulation, rule, letter of
interpretation, permit, agreement, transition area waiver, order, settlement,
exemption letter, or mitigation proposal adopted or issued by the Department
pursuant thereto, shall constitute an additional, separate, and distinct
violation.
(c) Where any
requirement of N.J.S.A. 13:9B-1
et seq. or 58:10A-1 et 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 22.8
Base Daily Penalty Matrix
| SERIOUSNESS |
| MAJOR |
MODERATE |
MINOR |
| MAJOR |
$ 25,000 |
$ 15,000 |
$ 10,000 |
| CONDUCT |
MODERATE |
$ 15,000 |
$ 7,500 |
$ 5,000 |
| MINOR |
$ 10,000 |
$ 5,000 |
$ 1,000 |
(e)
The seriousness of the violation shall be classified 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, safety, property, the Freshwater Wetlands Protection Act
regulatory program, or the environment, or seriously deviates from the
applicable law and/or condition. "Serious deviations" include, but are not
limited to, those violations that are in complete contravention of the
applicable law, requirement, and/or condition, and/or that 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. Any activity that negatively affects water
quality;
ii. Clearing, grading, or
filling of freshwater wetlands;
iii. Clearing, grading, or filling of
transition areas when done in conjunction with such activities in freshwater
wetlands;
iv. Clearing, grading,
filling, or disturbance of freshwater wetlands and/or transition areas in
excess of that authorized by a permit or plan;
v. Failure to timely record a conservation
restriction or easement, and the property has been sold or
transferred;
vi. Failure to report
the presence of a historic resource during construction and/or the destruction
of a historic resource without Department approval;
vii. Failure to comply with a historic
resource or mitigation requirement; and
viii. Failure of an applicant or permittee to
provide information upon request to determine compliance with any applicable
law and/or condition;
2.
Moderate seriousness shall apply to any violation that has caused or has the
potential to cause substantial harm to human health, safety, property, the
Freshwater Wetlands Protection Act regulatory program, or the environment, or
is a substantial deviation from the applicable law and/or condition.
"Substantial deviations" include, but are not limited to, violations that are
in substantial contravention of the law and/or condition, and/or that
substantially impair or undermine the protection, operation, or intent of
N.J.S.A. 13:9B-1 et seq.,
or
58:10A-1 et seq., or any regulation, rule, or permit
condition issued by the Department pursuant thereto. The Department shall
consider a violation that is limited solely to the transition area but is not
associated with a permit to be of moderate seriousness. Violations of moderate
seriousness include, but are not limited to:
i. Failure to notify the Department of
commencement of construction;
ii.
Failure to transfer a permit in accordance with this chapter; and
iii. Failure to timely record a conservation
restriction or easement, and the property has not been sold or
transferred.
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, transition area waiver, letter of interpretation, agreement, order,
settlement, exemption letter, or mitigation proposal or the conditions thereof
is a knowing violation;
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),
(e), and (f) above, multiplied by the number of calendar days during which each
violation continued or remained in place prior to removal or
restoration.
