Bill Text: NJ A3582 | 2010-2011 | Regular Session | Introduced
Bill Title: Requires assessment of administrative penalty amount by administrative law judge for environmental violations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-12-06 - Introduced, Referred to Assembly Environment and Solid Waste Committee [A3582 Detail]
Download: New_Jersey-2010-A3582-Introduced.html
Sponsored by:
Assemblyman JOHN J. BURZICHELLI
District 3 (Salem, Cumberland and Gloucester)
SYNOPSIS
Requires assessment of administrative penalty amount by administrative law judge for environmental violations.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning assessment of administrative penalties for environmental violations, amending various parts of the statutory law, and supplementing P.L.1968, c.410 (C.52:14B-1 et seq.) and Title 13 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.12:5-6 is amended to read as follows:
12:5-6. a. Any development or improvement enumerated in R.S.12:5-3 and in P.L.1975, c.232 (C.13:1D-29 et al.) or included within any rule or regulation adopted pursuant thereto, which is commenced or executed without first obtaining approval, or contrary to the conditions of approval, as provided in R.S.12:5-3 and in P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be deemed to be a violation under this section.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order requiring any such person to comply in accordance with subsection c. of this section; or
(2) Bring a civil action in accordance with subsection d. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection e. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection f. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection g. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
c. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or the rule, regulation, permit or order of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration to address any adverse effects resulting from the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order.
d. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provisions of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by any violation for which a civil action has been commenced and brought under this subsection. Recovery of damages and costs under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
e. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend for assessment civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend for assessment any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall identify the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty [assessed] recommended for assessment or assessed by an administrative law judge under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including any portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until 90 days after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
f. A person who violates any provision of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection c. of this section, or a court order issued pursuant to subsection d. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection e. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation.
g. A person who purposely, knowingly or recklessly violates any provision of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
h. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of R.S.12:5-3 or P.L.1975, c.232 (C.13:1D-29 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L.2007, c.246, s.1)
2. Section 9 of P.L.1970, c.39 (C.13:1E-9) is amended to read as follows:
9. a. All codes, rules and regulations adopted by the department related to solid waste collection and disposal shall have the force and effect of law. These codes, rules and regulations shall be observed throughout the State and shall be enforced by the department and by every local board of health, or county health department, as the case may be.
The department and the local board of health, or the county health department, as the case may be, shall have the right to enter a solid waste facility at any time in order to determine compliance with the registration statement and engineering design required pursuant to section 5 of P.L.1970, c.39 (C.13:1E-5), and with the provisions of all applicable laws or rules and regulations adopted pursuant thereto.
The municipal attorney or an attorney retained by a municipality in which a violation of such laws or rules and regulations adopted pursuant thereto is alleged to have occurred shall act as counsel to a local board of health.
The county counsel or an attorney retained by a county in which a violation of such laws or rules and regulations adopted pursuant thereto is alleged to have occurred shall act as counsel to the county health department.
Any county health department may charge and collect from the owner or operator of any sanitary landfill facility within its jurisdiction such fees for enforcement activities as may be established by ordinance or resolution adopted by the governing body of any such county. The fees shall be established in accordance with a fee schedule regulation adopted by the department, pursuant to law, and shall be utilized exclusively to fund such enforcement activities.
All enforcement activities undertaken by county health departments pursuant to this subsection shall conform to all applicable performance and administrative standards adopted pursuant to section 10 of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-28).
b. Whenever the commissioner finds that a person has violated any provision of P.L.1970, c.39 (C.13:1E-1 et seq.), or any rule or regulation adopted, permit issued, or district solid waste management plan adopted pursuant to P.L.1970, c.39, he shall:
(1) Issue an order requiring the person found to be in violation to comply in accordance with subsection c. of this section;
(2) Bring a civil action in accordance with subsection d. of this section;
(3) [Levy] Recommend for assessment a civil administrative penalty in accordance with subsection e. of this section;
(4) Bring an action for a civil penalty in accordance with subsection f. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection g. of this section.
c. Whenever the commissioner finds that a person has violated any provision of P.L.1970, c.39, or any rule or regulation adopted, permit issued, or district solid waste management plan adopted pursuant to P.L.1970, c.39, he may issue an order specifying the provision or provisions of P.L.1970, c.39, or the rule, regulation, permit or district solid waste management plan of which the person is in violation, citing the action which constituted the violation, ordering abatement of the violation, and giving notice to the person of his right to a hearing on the matters contained in the order. The ordered party shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. Such order shall be effective upon receipt and any person to whom such order is directed shall comply with the order immediately. A request for hearing shall not automatically stay the effect of the order.
d. The commissioner, a local board of health or county health department may institute an action or proceeding in the Superior Court for injunctive and other relief, including the appointment of a receiver for any violation of this act, or of any code, rule or regulation adopted, permit issued, district solid waste management plan adopted or order issued pursuant to this act and said court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief, notwithstanding the provisions of R.S.48:2-24.
Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) Assessment of the violator for any cost incurred by the State in removing, correcting or terminating the adverse effects upon water and air quality resulting from any violation of any provision of this act or any rule, regulation or condition of approval for which the action under this subsection may have been brought;
(4) Assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by any violation of this act or any rule, regulation or condition of approval established pursuant to this act for which the action under this subsection may have been brought. Assessments under this subsection shall be paid to the State Treasurer, or to the local board of health, or to the county health department, as the case may be, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.
If a proceeding is instituted by a local board of health or county health department, notice thereof shall be served upon the commissioner in the same manner as if the commissioner were a named party to the action or proceeding. The department may intervene as a matter of right in any proceeding brought by a local board of health or county health department.
e. The commissioner is authorized to [assess] recommend to an administrative law judge for assessment a civil administrative penalty of not more than $50,000.00 for each violation provided that each day during which the violation continues shall constitute an additional, separate and distinct offense. The [commission] commissioner shall not [assess] recommend for assessment a civil administrative penalty in excess of $25,000.00 for a single violation, or in excess of $2,500.00 for each day during which a violation continues, until the department has adopted, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), regulations requiring the commissioner, in [assessing] recommending for assessment a civil administrative penalty, [to consider] the consideration of the operational history of the solid waste facility at which the violation occurred, the severity of the violation, the measures taken to mitigate or prevent further violations, and whether the penalty will maintain an appropriate deterrent. No assessment shall be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, order, permit condition or district solid waste management plan violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties to be [imposed] recommended for assessment, and a statement of the party's right to a hearing. The ordered party shall have 20 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required . If no hearing is requested, the [notice] administrative law judge's order assessing the penalty shall become a final order after the expiration of [the] a 20-day period after issuance of the order assessing the penalty. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L.1970, c.39, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate.
f. Any person who violates the provisions of P.L.1970, c.39, or any code, rule or regulation adopted pursuant thereto shall be liable to a penalty of not more than $50,000.00 per day, to be collected in a civil action commenced by a local board of health, a county health department, or the commissioner.
Any person who violates an administrative order issued pursuant to subsection c. of this section, or a court order issued pursuant to subsection d. of this section, or who fails to pay an administrative assessment in full pursuant to subsection e. of this section is subject upon order of a court to a civil penalty not to exceed $100,000.00 per day of such violations.
Of the penalty imposed pursuant to this subsection, 10% or $250.00, whichever is greater, shall be paid to the department from the General Fund if the Attorney General determines that a person is entitled to a reward pursuant to section 2 of P.L.1987, c.158 (C.13:1E-9.2).
Any penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of "the penalty enforcement law" in connection with this act.
g. Any person who knowingly:
(1) Transports any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;
(2) Generates and causes or permits to be transported any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;
(3) Disposes, treats, stores or transports hazardous waste without authorization from the department;
(4) Makes any false or misleading statement to any person who prepares any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department; or
(5) Makes any false or misleading statement on any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be subject to a fine of not more than $50,000.00 for the first offense and not more than $100,000.00 for the second and each subsequent offense and restitution, in addition to any other appropriate disposition authorized by subsection b. of N.J.S.2C:43-2.
h. Any person who recklessly:
(1) Transports any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;
(2) Generates and causes or permits to be transported any hazardous waste to a facility or any other place which does not have authorization from the department to accept such waste;
(3) Disposes, treats, stores or transports hazardous waste without authorization from the department;
(4) Makes any false or misleading statement to any person who prepares any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department; or
(5) Makes any false or misleading statement on any hazardous waste application, label, manifest, record, report, design or other document required to be submitted to the department, shall, upon conviction, be guilty of a crime of the fourth degree.
i. Any person who, regardless of intent, generates and causes or permits any hazardous waste to be transported, transports, or receives transported hazardous waste without completing and submitting to the department a hazardous waste manifest in accordance with the provisions of this act or any rule or regulation adopted pursuant hereto shall, upon conviction, be guilty of a crime of the fourth degree.
j. All conveyances used or intended for use in the willful discharge, in violation of the provisions of P.L.1970, c.39 (C.13:1E-1 et seq.), of any solid waste, or hazardous waste as defined in P.L.1976, c.99 (C.13:1E-38 et seq.) are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).
k. (Deleted by amendment, P.L.1997, c.325.)
l. Pursuit of any remedy specified in this section shall not preclude the pursuit of any other remedy provided by any other law. Administrative and judicial remedies provided in this section may be pursued simultaneously.
(cf: P.L.1997, c.325, s.3)
3. Section 20 of P.L.1989, c.34 (C.13:1E-48.20) is amended to read as follows:
20. a. This act, and any rule or regulation adopted pursuant thereto, shall be enforced by the departments and by every local board of health, or county health department, as the case may be.
The departments and the local board of health, or the county health department, as the case may be, shall have the right to enter the premises of a generator, transporter, or facility at any time in order to determine compliance with this act.
The municipal attorney or an attorney retained by a municipality in which a violation of this act is alleged to have occurred shall act as counsel to a local board of health.
The county counsel or an attorney retained by a county in which a violation of this act is alleged to have occurred shall act as counsel to the county health department.
All enforcement activities undertaken by county health departments pursuant to this subsection shall conform to all applicable performance and administrative standards adopted pursuant to section 10 of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-28).
b. Whenever the Commissioner of Environmental Protection or the Commissioner of Health and Senior Services finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, that commissioner shall:
(1) issue an order requiring the person found to be in violation to comply in accordance with subsection c. of this section;
(2) bring a civil action in accordance with subsection d. of this section;
(3) [levy] recommend the assessment of a civil administrative penalty in accordance with subsection e. of this section;
(4) bring an action for a civil penalty in accordance with subsection f. of this section; or
(5) petition the Attorney General to bring a criminal action in accordance with subsections g. through j. of this section.
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
c. Whenever the Commissioner of Environmental Protection or the Commissioner of Health and Senior Services finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, that commissioner may issue an order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, ordering abatement of the violation, and giving notice to the person of the person's right to a hearing on the matters contained in the order. The ordered party shall have 20 days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.
d. The Commissioner of Environmental Protection, the Commissioner of Health and Senior Services, a local board of health, or a county health department may institute an action or proceeding in the Superior Court for injunctive and other relief, including the appointment of a receiver for any violation of this act, or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.
Such relief may include, singly or in combination:
(1) a temporary or permanent injunction;
(2) assessment of the violator for the costs of any investigation, inspection, or monitoring survey that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) assessment of the violator for any cost incurred by the State in removing, correcting, or terminating the adverse effects upon environmental quality or public health resulting from any violation of this act, or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought;
(4) assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by any violation of this act, or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought; and
(5) assessment against the violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
Assessments under this subsection shall be paid to the State Treasurer, or to the local board of health, or to the county health department, as the case may be, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.
If a proceeding is instituted by a local board of health or county health department, notice thereof shall be served upon the commissioners in the same manner as if the commissioners were named parties to the action or proceeding. Either of the departments may intervene as a matter of right in any proceeding brought by a local board of health or county health department.
e. Either of the commissioners, as the case may be, may [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $100,000 for each violation. Each day that a violation continues shall constitute an additional, separate, and distinct offense. A commissioner may not [assess] recommend the assessment of a civil administrative penalty in excess of $25,000 for a single violation, or in excess of $2,500 for each day during which a violation continues, until the departments have respectively adopted, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), regulations requiring the appropriate commissioner, in [assessing] recommending the assessment of a civil administrative penalty, to consider the operational history of the violator, the severity of the violation, the measures taken to mitigate or prevent further violations, and whether the penalty will maintain an appropriate deterrent. No assessment may be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, or order violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties [to be imposed] recommended for assessment, and a statement of the party's right to a hearing. The ordered party shall have 20 calendar days from receipt of the notice within which to deliver to the appropriate commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, [that commissioner] the administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 20-day period after issuance of the order assessing the penalty. Payment of the assessment is due when a final order is issued or the [notice] order of assessment becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. Each department may compromise any civil administrative penalty assessed under this section in an amount the department determines appropriate.
f. A person who violates this act, or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $100,000 per day for each violation, to be collected in a civil action commenced by the Commissioner of Environmental Protection, the Commissioner of Health and Senior Services, a local board of health, or a county health department.
A person who violates an administrative order issued pursuant to subsection c. of this section, or a court order issued pursuant to subsection d. of this section, or who fails to pay an administrative assessment in full pursuant to subsection e. of this section is subject upon order of a court to a civil penalty not to exceed $200,000 per day for each violation.
Of the penalty imposed pursuant to this subsection, 10% or $250, whichever is greater, shall be paid to the appropriate department from the General Fund if the Attorney General determines that a person is entitled to a reward pursuant to section 24 of this act.
Any penalty imposed pursuant to this subsection may be collected, with costs, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
g. A person who purposely or knowingly:
(1) disposes or stores regulated medical waste without authorization from either the Department of Environmental Protection or the Department of Health and Senior Services, as appropriate, or in violation of this act, or any rule or regulation adopted pursuant thereto;
(2) makes any false or misleading statement to any person who prepares any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto;
(3) makes any false or misleading statement on any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto; or
(4) fails to properly treat certain types of regulated medical waste designated by the Department of Health and Senior Services in a prescribed manner; shall, upon conviction, be guilty of a crime of the third degree and, notwithstanding the provisions of N.J.S.2C:43-3, shall be subject to a fine of not more than $100,000 for the first offense, and not more than $200,000 for each subsequent offense, and restitution, in addition to any other appropriate disposition authorized by subsection b. of N.J.S.2C:43-2.
h. A person who recklessly or negligently:
(1) disposes or stores regulated medical waste without authorization from either the Department of Environmental Protection or the Department of Health and Senior Services, as appropriate, or in violation of this act, or any rule or regulation adopted pursuant thereto;
(2) makes any false or misleading statement to any person who prepares any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto;
(3) makes any false or misleading statement on any regulated medical waste application, registration, form, label, certification, manifest, record, report, or other document required by this act, or any rule or regulation adopted pursuant thereto; or
(4) fails to properly treat certain types of regulated medical waste designated by the Department of Health and Senior Services in a manner prescribed thereby; shall, upon conviction, be guilty of a crime of the fourth degree.
i. A person who, regardless of intent:
(1) transports any regulated medical waste to a facility or any other place in the State that does not have authorization from the Department of Environmental Protection to accept such waste, or in violation of this act, or any rule or regulation adopted pursuant thereto; or
(2) transports, or receives transported, regulated medical waste without completing and submitting a manifest in accordance with this act, or any rule or regulation adopted pursuant thereto; shall, upon conviction, be guilty of a crime of the fourth degree.
j. A person who purposely, knowingly, or recklessly:
(1) generates and causes or permits to be transported any regulated medical waste to a facility or any other place in the State that does not have authorization from the Department of Environmental Protection to accept such waste, or in violation of this act, or any rule or regulation adopted pursuant thereto; or
(2) violates any other provision of this act, or any rule or regulation adopted pursuant thereto, for which no other criminal penalty has been specifically provided for; shall, upon conviction, be guilty of a crime of the fourth degree.
k. All conveyances used or intended for use in the willful discharge, in violation of this act, or any rule or regulation adopted pursuant thereto, of regulated medical waste are subject to forfeiture to the State pursuant to P.L.1981, c.387 (C.13:1K-1 et seq.).
l. (Deleted by amendment, P.L.1997, c.325.)
m. No prosecution for a violation under this act shall be deemed to preclude a prosecution for the violation of any other applicable statute.
(cf: P.L.2009, c.282, s.1)
4. Section 8 of P.L.2005, c.54 (C.13:1E-99.89) is amended to read as follows:
8. a. Whenever the commissioner finds that a person has violated any provision of this act, or any rule or regulation adopted pursuant thereto, the commissioner may:
(1) issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;
(2) bring a civil action in accordance with subsection c. of this section;
(3) [levy] recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
b. Whenever the commissioner finds that a person has violated this act, or any rule or regulation adopted pursuant thereto, the commissioner may issue an order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, ordering abatement of the violation, and giving notice to the person of the person's right to a hearing on the matters contained in the order. The ordered person shall have 20 calendar days from receipt of the order within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.
c. The commissioner may institute an action or proceeding in the Superior Court for injunctive and other relief to enforce the provisions of this act and to prohibit and prevent a violation of this act, or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.
Such relief may include, singly or in combination:
(1) a temporary or permanent injunction;
(2) assessment of the violator for the reasonable costs of any inspection that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.
d. The commissioner may [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $7,500 for a first offense, not more than $10,000 for a second offense and not more than $25,000 for a third and every subsequent offense. Each day that a violation continues shall constitute an additional, separate, and distinct offense.
No assessment may be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, or order violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties to be [imposed] recommended for assessment, and a statement of the person's right to a hearing. The ordered person shall have 20 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing.
After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required . If no hearing is requested, the notice shall become a final order after the expiration of [the] a 20-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The commissioner may compromise any civil administrative penalty assessed under this section in an amount the commissioner determines appropriate.
e. A person who violates this act, or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $7,500 per day, to be collected in a civil action commenced by the commissioner.
A person who violates an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay an administrative assessment in full pursuant to subsection d. of this section is subject upon order of a court to a civil penalty not to exceed $50,000 per day of each violation.
Any penalty imposed pursuant to this subsection may be collected, with costs, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who willfully or negligently violates this act shall be guilty, upon conviction, of a crime of the fourth degree and shall be subject to a fine of not less than $2,500 nor more than $25,000 per day of violation. A second offense under this subsection shall subject the violator to a fine of not less than $5,000 nor more than $50,000 per day of violation. A person who knowingly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or who falsifies, tampers with or knowingly renders inaccurate, any monitoring device or method required to be maintained pursuant to this act, shall, upon conviction, be subject to a fine of not more than $10,000.
(cf: P.L.2005, c.54, s.8)
5. Section 10 of P.L.1971, c.176 (C.13:1F-10) is amended to read as follows:
10. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of the provisions of P.L.1971, c.176 (C.13:1F-1 et seq.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an administrative enforcement order in accordance with subsection b. of this section requiring the person to comply;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1971, c.176, or of the rule, regulation, permit or order of which the person is in violation; (2) citing the action that constituted the violation; (3) requiring compliance with the provision or provisions violated; and (4) giving notice to the person of a right to a hearing on the matters contained in the order.
c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief from a violation of the provisions of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto. This relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, sampling or monitoring survey that led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, for which legal action under this subsection may have been brought;
(4) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
(5) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by any violation for which a civil action has been commenced and brought under this subsection. Recovery of damages and costs under this subsection shall be paid to the State Treasurer.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend for assessment civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend for assessment any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall include: a reference to the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required . If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in P.L.1971, c.176, or of any rule or regulation adopted, or permit or order issued pursuant thereto, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until 90 days after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. Any person who violates the provisions of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, or violates an administrative enforcement order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 for each day during which the violation continues. Any civil penalty imposed pursuant to this subsection may be collected, and any costs incurred in connection therewith may be recovered, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999."
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1971, c.176, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant, permittee or licensee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1971, c.176.
(cf: P.L.2007, c.246, s.3)
6. Section 9 of P.L.1970, c.272 (C.13:9A-9) is amended to read as follows:
9. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an administrative enforcement order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1970, c.272, or the rule, regulation, permit or order of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration to address any adverse effects upon a coastal wetland resulting from the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the administrative enforcement order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects upon a coastal wetland resulting from any violation for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by any violation for which a civil action has been commenced and brought under this subsection. Recovery of damages and costs ordered under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final administrative enforcement order after assessing the [amount of] the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final administrative enforcement order after the expiration of the 35-day period. Payment of the assessment is due when a final administrative enforcement order is issued or the notice and order of assessment becomes a final administrative enforcement order. The authority to levy a civil administrative order is in addition to all other enforcement provisions in P.L.1970, c.272, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until 90 days after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999."
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1970, c.272, or any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L.2007, c.246, s.4)
7. Section 21 of P.L.1987, c.156 (C.13:9B-21) is amended to read as follows:
21. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of P.L.1987, c.156, or the rule, regulation, permit or order of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration to address any adverse effects upon the freshwater wetland or transition area resulting from any violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provisions of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects upon the freshwater wetland or transition area resulting from any violation for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by any violation for which a civil action has been commenced and brought under this subsection. Recovery of damages and costs under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to the assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and the order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in P.L.1987, c.156, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including any portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, interest shall accrue on the amount of the penalty commencing on the date a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court. For the purposes of this subsection, the date that a penalty is due is the date that written notice of the penalty is received by the person responsible for payment thereof, or a later date as may be specified in the notice.
e. A person who violates any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999" in conjunction with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1987, c.156, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. In addition to the penalties prescribed in this section, the commissioner may record a notice for a violation of any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, which shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed. Any fees or other charges that are assessed against the department by either the clerk or register of deeds and mortgages of the county wherein the affected property is located for the recording of the notice of violation on the deed required pursuant to this subsection shall be paid by the owner of the affected property or the person committing the violation. The commissioner shall immediately order the notice removed once the violation is remedied or upon other conditions set forth by the commissioner.
h. If the violation is one in which the department has determined that the restoration of the site to its pre-violation condition would increase the harm to the freshwater wetland or its ecology, the department may issue an "after the fact" permit for the regulated activity that has already occurred; provided that any recovery of costs or damages ordered pursuant to subsection c. of this section has been satisfied, the creation or restoration of freshwater wetlands resources at another site has been required of the violator, an opportunity has been afforded for public hearing and comment, and the reasons for the issuance of the "after the fact" permit are published in the New Jersey Register and in a newspaper of general circulation in the geographical area of the violation. Any person violating an "after the fact" permit issued pursuant to this subsection shall be subject to the provisions of this section.
i. The burden of proof and degree of knowledge or intent required to establish a violation of any provision of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be no greater than the burden of proof or degree of knowledge or intent which the United States Environmental Protection Agency must meet in establishing a violation of the Federal Act or implementing regulations.
j. The department shall establish and implement a program designed to facilitate public participation in the enforcement of the provisions of P.L.1987, c.156, or any rule or regulation adopted, or permit or order issued pursuant thereto, which complies with the requirements of the Federal Act and implementing regulations.
k. The department shall make available without restriction any information obtained or used in the implementation of P.L.1987, c.156 to the United States Environmental Protection Agency upon a request therefor.
l. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1987, c.156.
m. The department shall have the authority to enter any property, facility, premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photocopying documents or records, and for otherwise determining compliance with the provisions of P.L.1987, c.156.
(cf: P.L.2007, c.246, s.5)
8. Section 18 of P.L.1973, c.185 (C.13:19-18) is amended to read as follows:
18. a. Whenever, on the basis of available information, the department finds that a person has violated any provision of P.L.1973, c.185 (C.13:19-1 et seq.), or any rule or regulation adopted, or permit or order issued by the department pursuant thereto, the department may:
(1) Issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
b. Whenever, on the basis of available information, the department finds that a person has violated any provision of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued by the department pursuant thereto, the department may issue an order: (1) specifying the provision or provisions of the act, regulation, rule, permit, or order of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration to address any adverse effects resulting from the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order. The ordered party shall have 35 days from receipt of the order within which to deliver to the department a written request for a hearing. After the hearing and upon finding that a violation has occurred, the department may issue a final order. If no hearing is requested, then the order shall become final after the expiration of the 35-day period. A request for hearing shall not automatically stay the effect of the order.
c. The department may institute a civil action in the Superior Court for appropriate relief, including the appointment of a receiver, from any violation of any provision of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued by the department pursuant thereto, and the court may proceed in the action in a summary manner.
Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the department in removing, correcting or terminating the adverse effects upon the land or upon water or air quality resulting from any violation of any provision of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued by the department pursuant thereto, for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by a violation of the provisions of P.L.1973, c.185 for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The department is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall include a reference to the section or provision of P.L.1973, c.185, the regulation, rule, permit, or order issued by the department pursuant to that act that has been violated, a concise statement of the facts alleged to constitute a violation, a statement of the basis for the amount of the civil administrative penalties to be [assessed] recommended for assessment, including any interest that may accrue thereon if the penalty is not paid when due, and a statement of the party's right to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the department a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [department] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued.
Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court. For the purposes of this subsection, the date that a penalty is due is the date that written notice of the penalty is received by the person responsible for payment thereof, or a later date as may be specified in the notice.
e. Any person who violates the provisions of P.L.1973, c.185, or any rule or regulation adopted pursuant thereto, or any permit or order issued by the department pursuant to that act, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty of not more than $25,000 for each violation, and each day during which a violation continues shall constitute an additional, separate, and distinct offense.
Any penalty established pursuant to this subsection may be imposed and collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999" in conjunction with this act. In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1973, c.185, or any rule or regulation adopted pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1973, c.185, or any rule or regulation adopted, or permit or order issued pursuant thereto.
h. There is created in the department a special nonlapsing fund, to be known as the "Cooperative Coastal Monitoring, Restoration and Enforcement Fund." Except as otherwise provided in this section, all monies from penalties, fines, or recoveries of costs collected by the department pursuant to this section on and after the effective date of this section, shall be deposited in the fund. Interest earned on monies deposited in the fund shall be credited to the fund. Unless otherwise specifically provided by law, monies in the fund shall be utilized by the department for the cost of coastal restoration projects and providing aircraft overflights for coastal monitoring, surveillance and enforcement activities conducted by the department and for the cost of administering P.L.1973, c.185 (C.13:19-1 et seq.). The department shall submit annually to the Legislature a report which provides an accounting of all monies deposited in the fund and the purposes for which monies in the fund are disbursed.
(cf: P.L.2007, c.246, s.6)
9. Section 35 of P.L.2004, c.120 (C.13:20-35) is amended to read as follows:
37. a. Whenever the Commissioner of Environmental Protection finds that a person has violated any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, the commissioner may:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies prescribed in this section or by any other applicable law.
b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, the commissioner may issue an order: (1) specifying the provision or provisions of the law, rule, regulation, permit, approval, or authorization of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection;
(3) Assessment of the violator for any costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any unauthorized regulated activity for which legal action under this subsection may have been brought;
(4) Assessment against the violator for compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by an unauthorized regulated activity;
(5) A requirement that the violator restore the site of the violation to the maximum extent practicable and feasible.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of up to $25,000 for each violation of any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, and duration. In adopting rules and regulations establishing the amount of any penalty to be assessed, the commissioner may take into account the economic benefits from the violation gained by the violator. No assessment shall be levied pursuant to this section until after the party has been notified by certified mail or personal service. The notice shall: (1) identify the section of the law, rule, regulation, permit, approval, or authorization violated; (2) recite the facts alleged to constitute a violation; (3) state the amount of the civil penalties to be imposed; and (4) affirm the rights of the alleged violator to a hearing. The ordered party shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 20-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy an administrative penalty is in addition to all other enforcement provisions in this act and in any other applicable law, rule, or regulation, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. Any civil administrative penalty assessed under this section may be compromised by the commissioner upon the posting of a performance bond by the violator, or upon such terms and conditions as the commissioner may establish by regulation.
e. A person who violates any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 per day of such violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of actual economic benefit accruing to the violator from the violation. The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely or negligently violates any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, shall be guilty, upon conviction, of a crime of the fourth degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not less than $2,500 nor more than $25,000 per day of violation, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes. A second or subsequent offense under this subsection shall subject the violator to a fine, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, of not less than $5,000 nor more than $50,000 per day of violation, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes. A person who knowingly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act shall be guilty, upon conviction, of a crime of the fourth degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not more than $10,000, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes.
g. In addition to the penalties prescribed in this section, a notice of violation of any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act, shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and with the clerk of the Superior Court and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed.
h. The department may require an applicant or permittee to provide any information the department requires to determine compliance with any provision of section 32 of this act, a Highlands permitting review approval issued pursuant to section 36 of this act, or any rule or regulation adopted pursuant to sections 33 and 34 of this act.
i. Any person who knowingly, recklessly, or negligently makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act shall be in violation of this act and shall be subject to the penalties assessed pursuant to subsections d. and e. of this section.
j. All penalties collected pursuant to this section shall either be used, as determined by the council, by the department for the acquisition of lands in the preservation area or by any development transfer bank used or established by the council to purchase development potential in the preservation area.
k. The department shall have the authority to enter any property, facility, premises, or site for the purpose of conducting inspections or sampling of soil or water, and for otherwise determining compliance with the provisions of sections 32 through 36 of this act.
(cf: P.L.2004, c.120, s.37)
10. Section 10 of P.L.1973, c.309 (C.23:2A-10) is amended to read as follows:
10. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of the provisions of P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order in accordance with subsection b. of this section requiring the person to comply;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of P.L.1973, c.309, or the rule or regulation, or order or permit issued pursuant thereto, of which the person is in violation; (2) citing the action that constituted the violation; (3) requiring compliance with the provision of P.L.1973, c.309, the rule or regulation, or order or permit issued pursuant thereto, of which the person is in violation; (4) requiring the restoration to address any adverse effects resulting from the violation; and (5) giving notice to the person of a right to a hearing on the matters contained in the order.
c. The commissioner is hereby authorized and empowered to commence a civil action in Superior Court for appropriate relief from a violation of the provisions of P.L.1973, c.309, or any rule or regulation adopted, or any permit or order issued pursuant thereto. This relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, sampling or monitoring survey that led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of P.L.1973, c.309 for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by any violation for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the "Endangered and Nongame Species of Wildlife Conservation Fund," established pursuant to section 1 of P.L.1981, c.170 (C.54A:9-25.2), except that compensatory damages to privately held resources shall be paid by specific order of the court to any persons who have been aggrieved by the unauthorized regulated activity;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1973, c.309, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty to be assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice] . If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in P.L.1973, c.309, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. Any person who violates any provision of P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 for each day during which the violation continues. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court and municipal courts shall have jurisdiction to enforce the "Penalty Enforcement Law of 1999."
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1973, c.309, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. All penalties collected pursuant to this section shall be deposited in the "Endangered and Nongame Species of Wildlife Conservation Fund," established pursuant to section 1 of P.L.1981, c.170 (C.54A:9-25.2), and kept separate from other receipts deposited therein, and appropriated to the department for the purposes outlined in that fund.
h. Each applicant or permittee, upon the request of the department, shall provide any information the department or the commissioner requires to determine compliance with any provision of P.L.1973, c.309, or of any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L.2007, c.246, s.7)
11. Section 16 of P.L.1981, c.262 (C.58:1A-16) is amended to read as follows:
16. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order in accordance with subsection b. of this section requiring the person to comply;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an order: (1) specifying the provision or provisions of P.L.1981, c.262, or the rule or regulation adopted, or order or permit issued pursuant thereto, of which the person is in violation; (2) citing the action that constituted the violation; (3) requiring compliance with the provision of P.L.1981, c.262, or the rule or regulation adopted, or order or permit issued pursuant thereto, of which the person is in violation; (4) requiring the restoration to address any adverse effects resulting from the violation; and (5) giving notice to the person of a right to a hearing on the matters contained in the order.
c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief from a violation of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto. This relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, sampling or monitoring survey that led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of P.L.1981, c.262 for which a civil action has been commenced and brought under this subsection;
(4) An order requiring the restoration of any adverse effects resulting from any unauthorized regulated activity for which a civil action is commenced under this subsection.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall include a reference to the section of the statute, regulation, or order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in P.L.1981, c.262, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. Any person who violates any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay in full a civil administrative penalty levied pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 for each day during which the violation continues. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1981, c.262, or any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L.2007, c.246, s.8)
12. R.S.58:4-6 is amended to read as follows:
58:4-6. a. Whenever, on the basis of available information, the Commissioner of Environmental Protection finds that a person has violated any provision of the "Safe Dam Act," P.L.1981, c.249 (C.58:4-8.1 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies prescribed in this section or by any other applicable law.
b. Whenever, on the basis of available information, the commissioner finds a person in violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative order: (1) specifying the provision or provisions of the law, rule, regulation, permit or order, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction, including an order or judgment as will effectually secure the persons interested from danger of loss from the breaking of a dam. The court may proceed in the action in a summary manner or otherwise;
(2) Recovery of the reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by a violation for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the "Environmental Services Fund," established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and kept separate from other receipts deposited therein, and appropriated to the department for the removal of dams in the State, except that compensatory damages to privately held resources shall be paid by specific order of the court to any persons who have been aggrieved by the unauthorized regulated activity;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty to be assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall: (1) identify the section of the law, rule, regulation, permit or order violated; (2) recite the facts alleged to constitute a violation; (3) state the basis for the amount of the civil penalties to be assessed; and (4) affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order specifying the amount of the fine imposed. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become final after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy an administrative penalty is in addition to all other enforcement provisions in this act and in any other applicable law, rule, or regulation, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1981, c.249 or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this section.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under the provisions of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to the provisions of P.L.1981, c.249, or of any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and, notwithstanding any provision of N.J.S.2C:43-3 to the contrary, shall be subject to a fine of not more than $50,000, or by imprisonment, or both, in addition to any other applicable penalties and provisions under Title 2C of the New Jersey Statutes.
g. In addition to the penalties prescribed in this section, the commissioner may record a notice for a violation of any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto, which shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed. Any fees or other charges that are assessed by either the clerk or register of deeds and mortgages of the county wherein the affected property is located or the department for the recording of the notice of violation on the deed required pursuant to this subsection shall be paid by the owner of the affected property or the person committing the violation. The commissioner shall immediately order the notice removed once the violation is remedied or upon conditions set by the commissioner.
h. Each owner or person having control of a reservoir or dam shall provide, upon request of the department, any information the department requires to determine compliance with any provision of P.L.1981, c.249, or any rule or regulation adopted, or permit or order issued pursuant thereto.
i. (Deleted by amendment, P.L.2007, c.246).
j. All penalties collected pursuant to this section or sums collected pursuant to R.S.58:4-5 shall be deposited in the "Environmental Services Fund," established pursuant to section 5 of P.L.1975, c.232 (C.13:1D-33), and kept separate from other receipts deposited therein, and appropriated to the department for the removal of dams in the State.
k. The department shall have the authority to enter any property, facility, premises, or site for the purpose of conducting inspections to determine the condition of any dam, or to conduct inspections of ordered repairs or to otherwise determine compliance with the provisions of P.L.1981, c.249.
(cf: P.L.2007, c.246, s.9)
13. Section 22 of P.L.1976, c.141 (C.58:10-23.11u) is amended to read as follows:
22. a. (1) Whenever, on the basis of available information, the department determines that a person is in violation of a provision of P.L.1976, c.141 (C.58:10-23.11 et seq.), including any rule, regulation, plan, information request, access request, order or directive promulgated or issued pursuant thereto, or that a person knowingly has given false testimony, documents or information to the department, the department may:
(a) bring a civil action in accordance with subsection b. of this section;
(b) [levy] recommend the assessment of a civil administrative penalty in accordance with subsection c. of this section; or
(c) bring an action for a civil penalty in accordance with subsection d. of this section.
Use of any remedy specified in this section shall not preclude use of any other remedy. The department may simultaneously pursue administrative and judicial remedies provided in this section.
b. The department may commence a civil action in Superior Court for, singly or in combination:
(1) a temporary or permanent injunction;
(2) the costs of any investigation, cleanup or removal, and for the reasonable costs of preparing and successfully litigating an action under this subsection;
(3) the cost of restoring, repairing, or replacing real or personal property damaged or destroyed by a discharge, any income lost from the time the property is damaged to the time it is restored, repaired or replaced, and any reduction in value of the property caused by the discharge by comparison with its value prior thereto;
(4) the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge; and
(5) any other costs incurred by the department pursuant to P.L.1976, c.141.
Compensatory damages for damages awarded to a person other than the State shall be paid to the person injured by the discharge.
c. (1) The department may [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $50,000 for each violation, and each day of violation shall constitute an additional, separate and distinct violation. A civil administrative penalty shall not be levied until a violator has been notified by certified mail or personal service of:
(a) the statutory or regulatory basis of the violation;
(b) the specific citation of the act or omission constituting the violation;
(c) the amount of the civil administrative penalty [to be imposed] recommended for assessment;
(d) the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.
(2) (a) A violator shall have 20 calendar days following receipt of notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all departmental procedures shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the [department] administrative law judge shall issue a final order assessing the amount of the civil administrative penalty [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required . If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the [notice] order of assessment of a civil administrative penalty shall become a final order on the 21st calendar day following receipt of the [notice] order of assessment by the violator. If the department denies a hearing request, the notice of denial shall become a final order upon receipt of the notice by the violator.
(b) A civil administrative penalty may be settled by the department on such terms and conditions as the department may determine.
(c) Payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement remedy in connection with the violation for which the penalty was levied.
(3) If a civil administrative penalty imposed pursuant to this section is not paid within 30 days of the date that the penalty is due and owing, and the penalty is not contested by the person against whom the penalty has been assessed, or the person fails to make a payment pursuant to a payment schedule entered into with the department, an interest charge shall accrue on the amount of the penalty from the 30th day that amount was due and owing. In the case of an appeal of a civil administrative penalty, if the amount of the penalty is upheld, in whole or in part, the rate of interest shall be calculated on that amount as of the 30th day from the date the amount was due and owing under the administrative order. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
(4) The department may assess and recover, by civil administrative order, the costs of any investigation, cleanup or removal, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty pursuant to this subsection. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.
d. Any person who violates a provision of P.L.1976, c.141 (C.58:10-23.11 et seq.), or a court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject to a civil penalty not to exceed $50,000.00 per day for each violation, and each day's continuance of the violation shall constitute a separate violation. Any penalty incurred under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.) in the Superior Court or a municipal court.
e. All conveyances used or intended for use in the willful discharge of any hazardous substance are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).
(cf: P.L.1990, c.75, s.1)
14. Section 10 of P.L.1977, c.74 (C.58:10A-10) is amended to read as follows:
10. a. Whenever the commissioner finds that any person is in violation of any provision of this act, he shall:
(1) Issue an order requiring any such person to comply in accordance with subsection b. of this section; or
(2) Bring a civil action in accordance with subsection c. of this section; or
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section; or
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Use of any of the remedies specified under this section shall not preclude use of any other remedy specified.
In the case of one or more pollutants for which interim enforcement limits have been established pursuant to an administrative order, including an administrative consent order, by the department or a local agency, the permittee shall be liable for the enforcement limits stipulated therein.
b. Whenever the commissioner finds that any person is in violation of any provision of this act, he may issue an order (1) specifying the provision or provisions of this act, or the rule, regulation, water quality standard, effluent limitation, or permit of which he is in violation, (2) citing the action which caused such violation, (3) requiring compliance with such provision or provisions, and (4) giving notice to the person of his right to a hearing on the matters contained in the order.
c. The commissioner is authorized to commence a civil action in Superior Court for appropriate relief for any violation of this act or of a permit issued hereunder. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Assessment of the violator for the reasonable costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) Assessment of the violator for any reasonable cost incurred by the State in removing, correcting or terminating the adverse effects upon water quality resulting from any unauthorized discharge of pollutants for which the action under this subsection may have been brought;
(4) Assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, or other natural resources, and for any other actual damages caused by an unauthorized discharge;
(5) Assessment against a violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
Assessments under paragraph (4) of this subsection shall be paid to the State Treasurer, except that compensatory damages shall be paid by specific order of the court to any persons who have been aggrieved by the unauthorized discharge. Assessments pursuant to actions brought by the commissioner under paragraphs (2), (3) and (5) of this subsection shall be paid to the "Clean Water Enforcement Fund," established pursuant to section 12 of P.L.1990, c.28 (C.58:10A-14.4).
d. (1) (a) The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of, in accordance with a uniform policy adopted therefor, a civil administrative penalty of not more than $50,000.00 for each violation and each day during which such violation continues shall constitute an additional, separate, and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, and duration. The commissioner shall adopt, by regulation, a uniform assessment of civil penalties policy by January 1, 1992.
(b) In adopting rules for a uniform penalty policy for determining the amount of a penalty to be assessed, the commissioner shall take into account the type, seriousness, including extent, toxicity, and frequency of a violation based upon the harm to public health or the environment resulting from the violation, the economic benefits from the violation gained by the violator, the degree of cooperation or recalcitrance of the violator in remedying the violation, any measures taken by the violator to avoid a repetition of the violation, any unusual or extraordinary costs directly or indirectly imposed on the public by the violation other than costs recoverable pursuant to paragraph (3) or (4) of subsection c. of this section, and any other pertinent factors that the commissioner determines measure the seriousness or frequency of the violation, or conduct of the violator.
(c) In addition to the recommendation of the assessment of a civil administrative penalty, the commissioner may, by administrative order and upon an appropriate finding, [assess] recommend the assessment of a violator for costs authorized pursuant to paragraphs (2) and (3) of subsection c. of this section.
(2) No assessment shall be levied pursuant to this subsection until after the discharger has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil penalties [to be imposed] recommended for assessment; and a statement of the party's right to a hearing. The ordered party shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, then the notice and order of assessment shall become a final order after the expiration of [the] a 20-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order.
(3) If a civil administrative penalty imposed pursuant to this subsection is not paid within 30 days of the date that the penalty is due and owing, and the penalty is not contested by the person against whom the penalty has been assessed, or the person fails to make a payment pursuant to a payment schedule entered into with the department, an interest charge shall accrue on the amount of the penalty due and owing from the 30th day after the date on which the penalty was due and owing. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
(4) The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. Any civil administrative penalty assessed under this section may be compromised by the commissioner upon the posting of a performance bond by the violator, or upon such terms and conditions as the commissioner may establish by regulation, except that the amount compromised shall not be more than 50% of the assessed penalty, and in no instance shall the amount of that compromised penalty be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). In the case of a violator who is a local agency that enters into an administrative consent order, the terms of which require the local agency to take prescribed measures to comply with its permit, the commissioner shall have full discretion to compromise the amount of penalties assessed or due for violations occurring during a period up to 24 months preceding the entering into the administrative consent order; except that the amount of the compromised penalty may not be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). A civil administrative penalty assessed against a local agency for a violation of an administrative consent order may not be compromised by more than 50% of the assessed penalty. In no instance shall the amount of a compromised penalty assessed against a local agency be less than the statutory minimum amount, if applicable, prescribed in section 6 of P.L.1990, c.28 (C.58:10A-10.1). The commissioner shall not compromise the amount of any component of a civil administrative penalty which represents the economic benefit gained by the violator from the violation.
(5) A person, other than a local agency, appealing a penalty assessed against that person in accordance with this subsection, whether contested as a contested case pursuant to P.L.1968, c.410 (C.52:14B-1 et seq.) or by appeal to a court of competent jurisdiction, shall, as a condition of filing the appeal, post with the commissioner a refundable bond, or other security approved by the commissioner, in the amount of the civil administrative penalty assessed. If the [department's] assessed penalty is upheld in full or in part, the department shall be entitled to a daily interest charge on the amount of the judgment from the date of the posting of the security with the commissioner and until paid in full. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey. In addition, if the amount of the penalty [assessed by the department] is upheld in full in an appeal of the assessment at an administrative hearing or at a court of competent jurisdiction, the person appealing the penalty shall reimburse the department for all reasonable costs incurred by the department in preparing and litigating the imposition of the assessment, except that no litigation costs shall be imposed where the appeal ultimately results in a reduction or elimination of the assessed penalty.
(6) A civil administrative penalty imposed pursuant to a final order:
(a) may be collected or enforced by summary proceedings in a court of competent jurisdiction in accordance with "the penalty enforcement law," N.J.S.2A:58-1 et seq.; or
(b) shall constitute a debt of the violator or discharger and the civil administrative penalty may be docketed with the clerk of the Superior Court, and shall have the same standing as any judgment docketed pursuant to N.J.S.2A:16-1; except that no lien shall attach to the real property of a violator pursuant to this subsection if the violator posts a refundable bond or other security with the commissioner pursuant to an appeal of a final order to the Appellate Division of the Superior Court. No lien shall attach to the property of a local agency.
(7) The commissioner shall refer to the Attorney General and the county prosecutor of the county in which the violations occurred the record of violations of any permittee determined to be a significant noncomplier.
e. Any person who violates this act or an administrative order issued pursuant to subsection b. or a court order issued pursuant to subsection c., or who fails to pay a civil administrative penalty in full pursuant to subsection d., or to make a payment pursuant to a payment schedule entered into with the department, shall be subject upon order of a court to a civil penalty not to exceed $50,000.00 per day of such violation, and each day's continuance of the violation shall constitute a separate violation. Any penalty incurred under this subsection may be recovered with costs, and, if applicable, interest charges, in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). In addition to any civil penalties, costs or interest charges, the court, in accordance with paragraph (5) of subsection c. of this section, may assess against a violator the amount of any actual economic benefits accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce "the penalty enforcement law" in conjunction with this act.
f. (1) (a) Any person who purposely, knowingly, or recklessly violates this act, and the violation causes a significant adverse environmental effect, shall, upon conviction, be guilty of a crime of the second degree, and shall, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, be subject to a fine of not less than $25,000 nor more than $250,000 per day of violation, or by imprisonment, or by both.
(b) As used in this paragraph, a significant adverse environmental effect exists when an action or omission of the defendant causes: serious harm or damage to wildlife, freshwater or saltwater fish, any other aquatic or marine life, water fowl, or to their habitats, or to livestock, or agricultural crops; serious harm, or degradation of, any ground or surface waters used for drinking, agricultural, navigational, recreational, or industrial purposes; or any other serious articulable harm or damage to, or degradation of, the lands or waters of the State, including ocean waters subject to its jurisdiction pursuant to P.L.1988, c.61 (C.58:10A-47 et seq.).
(2) Any person who purposely, knowingly, or recklessly violates this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a monitoring report, or any portion thereof, required pursuant to this act, shall, upon conviction, be guilty of a crime of the third degree, and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $75,000 per day of violation, or by imprisonment, or by both.
(3) Any person who negligently violates this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a discharge monitoring report, or any portion thereof, required pursuant to this act, shall, upon conviction, be guilty of a crime of the fourth degree, and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or by both.
(4) Any person who purposely or knowingly violates an effluent limitation or other condition of a permit, or who discharges without a permit, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, shall, upon conviction, be guilty of a crime of the first degree, and shall, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, be subject of a fine of not less than $50,000 nor more than $250,000, or, in the case of a corporation, a fine of not less than $200,000 nor more than $1,000,000, or by imprisonment or by both.
(5) As used in this subsection, "purposely," "knowingly," "recklessly," and "negligently" shall have the same meaning as defined in N.J.S.2C:2-2.
g. All conveyances used or intended for use in the purposeful or knowing discharge, in violation of the provisions of P.L.1977, c.74 (C.58:10A-1 et seq.), of any pollutant or toxic pollutant are subject to forfeiture to the State pursuant to the provisions of P.L.1981, c.387 (C.13:1K-1 et seq.).
h. The amendatory portions of this section, as set forth in P.L.1990, c.28 (C.58:10A-10.1 et al.), except for subsection f. of this section, shall not apply to violations occurring prior to July 1, 1991.
(cf: P.L.1990,c.28,s.5)
15. Section 6 of P.L.1991, c.123 (C.58:10A-24.6) is amended to read as follows:
6. a. If a person violates any of the provisions of this act or any rule or regulation adopted, or order issued, thereunder, the department may institute a civil action in a court of competent jurisdiction for injunctive or other appropriate relief to prohibit and prevent the violation, and the court may proceed in the action in a summary manner.
b. Any person who violates the provisions of this act, or any rule or regulation adopted, or order issued, hereunder, is liable to a civil administrative penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. If the violation is of a continuing nature, each day of violation subsequent to receipt of an order to cease the violation constitutes an additional, separate and distinct offense. No civil administrative penalty shall be levied except subsequent to the notification of the violator by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute the violation; a statement of the amount of the civil penalty [to be imposed] recommended for assessment; and a statement of the violator's right to a hearing. The violator shall have 20 days from receipt of notice within which to deliver to the department a written request for a hearing. Subsequent to the hearing and upon a finding that a violation has occurred, the [department] administrative law judge may issue a final order assessing the amount of the penalty. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order upon the expiration of [the] a 20-day period after the issuance of the order of assessment. Payment of the penalty is due when a final order is issued or when the notice and order of assessment becomes a final order. Agreement to, or payment of a civil administrative penalty shall not be deemed to affect the availability of any other enforcement provision in connection with the violation for which the penalty is levied.
c. Any person who violates the provisions of this act, is liable to a civil penalty of not more than $5,000 for the first offense, not more than $10,000 for the second offense, and $25,000 for the third and each subsequent offense. Any person violating an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection a. of this section, or who fails to pay a civil administrative penalty when due and owing as provided in subsection b. of this section, is subject to a civil penalty not to exceed $25,000 per day of the violation. Each day's continuance of a violation constitutes a separate and distinct violation. Any penalty imposed under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Law Division of the Superior Court shall have jurisdiction to enforce "the penalty enforcement law."
d. The department may compromise and settle any claim for a penalty under this section in such amount as the department may determine to be appropriate and equitable under all of the circumstances.
e. Any person who fails to contest or to pay, in whole or in part, a penalty imposed pursuant to this section, or who fails to agree to a payment schedule therefor, within 30 days of the date that the penalty is due and owing, shall be subject to an interest charge on the amount of the penalty from the date that the amount was due and owing. The rate of interest shall be that established by the New Jersey Supreme Court for interest rates on judgments, as set forth in the Rules Governing the Courts of the State of New Jersey.
f. The penalty provisions of this section shall be in addition to such penalties as may be assessable pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32) for violations of that act.
g. All penalties, monies, and any interest thereon, assessed and collected pursuant to this section shall be deposited into the "New Jersey Spill Compensation Fund," established pursuant to section 10 of P.L.1976, c.141 (C.58:10-23.11i) for use for any of the authorized purposes of the fund. The provisions of this subsection shall not apply to penalties assessed and collected pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32).
(cf: P.L.1991, c.123, s.6)
16. Section 3 of P.L.2009, c.282 (C.58:10A-49.1) is amended to read as follows:
3. a. Whenever the Commissioner of Environmental Protection finds that a person has intentionally dumped material into the ocean waters within the jurisdiction of this State, or into the waters outside the jurisdiction of this State, which material enters the ocean waters within the jurisdiction of this State, the commissioner shall:
(1) bring a civil action in accordance with subsection b. of this section;
(2) [levy] recommend the assessment of a civil administrative penalty in accordance with subsection c. of this section;
(3) bring an action for a civil penalty in accordance with subsection d. of this section; or
(4) petition the Attorney General to bring a criminal action in accordance with section 3 of P.L.1988, c.61 (C.58:10A-49).
Pursuit of any of the remedies specified under this section shall not preclude the seeking of any other remedy specified.
b. The commissioner may institute an action or proceeding in the Superior Court for injunctive and other relief, including the appointment of a receiver for any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or of any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner. In any such proceeding the court may grant temporary or interlocutory relief.
Such relief may include, singly or in combination:
(1) a temporary or permanent injunction;
(2) assessment of the violator for the costs of any investigation, inspection, or monitoring survey that led to the establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection;
(3) assessment of the violator for any cost incurred by the State in removing, correcting, or terminating the adverse effects upon environmental quality or public health resulting from any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought;
(4) assessment against the violator of compensatory damages for any loss or destruction of wildlife, fish or aquatic life, and for any other actual damages caused by any violation of P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, for which the action under this subsection may have been brought; and
(5) assessment against the violator of the actual amount of any economic benefits accruing to the violator from a violation. Economic benefits may include the amount of any savings realized from avoided capital or noncapital costs resulting from the violation; the return earned or that may be earned on the amount of avoided costs; any benefits accruing to the violator as a result of a competitive market advantage enjoyed by reason of the violation; or any other benefits resulting from the violation.
Assessments under this subsection shall be paid to the State Treasurer, except that compensatory damages may be paid by specific order of the court to any persons who have been aggrieved by the violation.
c. The commissioner may [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $100,000 for each violation. Each day that a violation continues shall constitute an additional, separate, and distinct offense. No assessment may be levied pursuant to this section until after the violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, regulation, or order violated, a concise statement of the facts alleged to constitute a violation, a statement of the amount of the civil administrative penalties [to be imposed] recommended for assessment, and a statement of the party's right to a hearing. The ordered party shall have 20 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final order after the expiration of [the] a 20-day period after issuance of the order of assessment. Payment of the assessment is due when a final order is issued or the notice and order of assessment becomes a final order. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions in P.L.1988, c.61 (C.58:10A-47 et seq.), and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied.
d. A person who violates P.L.1988, c.61 (C.58:10A-47 et seq.), or any rule or regulation adopted pursuant thereto, shall be liable for a penalty of not more than $100,000 per day for each violation, to be collected in a civil action commenced by the Commissioner of Environmental Protection.
A person who violates a court order issued pursuant to subsection b. of this section or who fails to pay an administrative assessment in full pursuant to subsection c. of this section is subject upon order of a court to a civil penalty not to exceed $100,000 per day for each violation.
Any penalty imposed pursuant to this subsection may be collected, with costs, in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with P.L.1988, c.61 (C.58:10A-47 et seq.).
(cf: P.L.2009, c.282, s.3)
17. Section 10 of P.L.1977, c.224 (C.58:12A-10) is amended to read a follows:
10. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et al.), or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an administrative enforcement order requiring any such person to comply in accordance with subsection b. of this section;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the administrative enforcement order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, for which a civil action has been commenced and brought under this subsection;
(4) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final administrative enforcement order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final administrative enforcement order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final administrative enforcement order is issued or the notice and order of assessment becomes a final administrative enforcement order. The authority to levy a civil administrative order is in addition to all other enforcement provisions in P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1977, c.224, or any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L.2007, c.246, s.11)
18. Section 12 of P.L.1972, c.185 (C.58:16A-63) is amended to read as follows:
12. a. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.), P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may:
(1) Issue an administrative enforcement order requiring any such person to comply in accordance with subsection b. of this section;
(2) Bring a civil action in accordance with subsection c. of this section;
(3) [Levy] Recommend the assessment of a civil administrative penalty in accordance with subsection d. of this section;
(4) Bring an action for a civil penalty in accordance with subsection e. of this section; or
(5) Petition the Attorney General to bring a criminal action in accordance with subsection f. of this section.
Recourse to any of the remedies available under this section shall not preclude recourse to any of the other remedies.
b. Whenever, on the basis of available information, the commissioner finds that a person is in violation of any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, the commissioner may issue an administrative enforcement order: (1) specifying the provision or provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, of which the person is in violation; (2) citing the action which constituted the violation; (3) requiring compliance with the provision or provisions violated; (4) requiring the restoration of the area which is the site of the violation; and (5) providing notice to the person of the right to a hearing on the matters contained in the administrative enforcement order.
c. The commissioner is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto. Such relief may include, singly or in combination:
(1) A temporary or permanent injunction;
(2) Recovery of reasonable costs of any investigation, inspection, or monitoring survey which led to the discovery of the violation, and for the reasonable costs of preparing and bringing a civil action commenced under this subsection;
(3) Recovery of reasonable costs incurred by the State in removing, correcting, or terminating the adverse effects resulting from any violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, for which a civil action has been commenced and brought under this subsection;
(4) Recovery of compensatory damages for any loss or destruction of natural resources, including but not limited to, wildlife, fish, aquatic life, habitat, plants, or historic or archeological resources, and for any other actual damages caused by a violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto for which a civil action has been commenced and brought under this subsection. Assessments under this subsection shall be paid to the State Treasurer;
(5) An order requiring the violator restore the site of the violation to the maximum extent practicable and feasible or, in the event that restoration of the site of the violation is not practicable or feasible, provide for off-site restoration alternatives as approved by the department.
d. The commissioner is authorized to [assess] recommend to an administrative law judge the assessment of a civil administrative penalty of not more than $25,000 for each violation of the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense. Any amount assessed under this subsection shall fall within a range established by regulation by the commissioner for violations of similar type, seriousness, duration, and conduct; provided, however, that prior to the adoption of the regulation, the commissioner may, on a case-by-case basis, [assess] recommend the assessment of civil administrative penalties up to a maximum of $25,000 per day for each violation, utilizing the criteria set forth herein. In addition to any administrative penalty assessed under this subsection, and notwithstanding the $25,000 maximum penalty set forth above, the commissioner may [assess] recommend the assessment of any economic benefits from the violation gained by the violator. Prior to assessment of a penalty under this subsection, the property owner or person committing the violation shall be notified by certified mail or personal service that the penalty is being [assessed] recommended for assessment. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil penalties [to be assessed] recommended for assessment; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 35 calendar days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the [commissioner] administrative law judge may issue a final administrative enforcement order after assessing the amount of the fine [specified in the notice]. If the ordered party does not request a hearing, an administrative law judge shall issue an order assessing a penalty. Strict adherence to the commissioner's recommended penalty assessment is not required. If no hearing is requested, the notice and order of assessment shall become a final administrative enforcement order after the expiration of [the] a 35-day period after issuance of the order of assessment. Payment of the assessment is due when a final administrative enforcement order is issued or the notice and order of assessment becomes a final administrative enforcement order. The authority to levy a civil administrative order is in addition to all other enforcement provisions in P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 90 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.
e. A person who violates any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who fails to make a payment pursuant to a penalty payment schedule entered into with the department, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the department, shall be subject, upon order of a court, to a civil penalty not to exceed $25,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). In addition to any penalties, costs or interest charges, the court may assess against the violator the amount of economic benefit accruing to the violator from the violation. The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
f. A person who purposely, knowingly or recklessly violates any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both. A person who purposely, knowingly, or recklessly makes a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, or who falsifies, tampers with or purposely, knowingly, or recklessly renders inaccurate, any monitoring device or method required to be maintained pursuant to P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, be subject to a fine of not more than $50,000 per day of violation, or by imprisonment, or both.
g. In addition to the penalties prescribed in this section, the commissioner may record a notice for a violation of any provision of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto, which shall be recorded on the deed of the property wherein the violation occurred, on order of the commissioner, by the clerk or register of deeds and mortgages of the county wherein the affected property is located and shall remain attached thereto until such time as the violation has been remedied and the commissioner orders the notice of violation removed. Any fees or other charges that are assessed by either the clerk or register of deeds and mortgages of the county wherein the affected property is located or the department for the recording of the notice of violation on the deed required pursuant to this subsection shall be paid by the owner of the affected property or person committing the violation. The commissioner shall immediately order the notice removed once the violation is remedied or upon conditions set forth by the commissioner.
h. Each applicant or permittee shall provide, upon the request of the department, any information the department requires to determine compliance with the provisions of P.L.1962, c.19, P.L.1972, c.185, P.L.1977, c.385 or P.L.1979, c.359, or any rule or regulation adopted, or permit or order issued pursuant thereto.
(cf: P.L. 2007, c.246, s.10)
19. (New section) Notwithstanding the provisions of P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the Commissioner of Environmental Protection shall have no authority to reject or modify a civil administrative penalty assessed by an administrative law judge pursuant to the provisions of R.S.12:5-6, section 9 of P.L.1970, c.39 (13:1E-9), section 20 of P.L.1989, c.34 (C.13:1E-48.20), section 8 of P.L.2005, c.54 (C.13:1E-99.89), section 10 of P.L.1971, c.176 (C.13:1F-10), section 9 of P.L.1970, c.272 (C.13:9A-9), section 21 of P.L.1987, c.156 (C.13:9B-21), section 18 of P.L.1973, c.185 (C.13:19-18), section 35 of P.L.2004, c.120 (C.13:20-35), section 10 of P.L.1973, c.309 (C.23:2A-10), section 16 of P.L.1981, c.262 (C.58:1A-16), R.S.58:4-6, section 22 of P.L.1976, c.141 (C.58:10-23.11u), section 10 of P.L.1977, c.74 (C.58:10A-10), section 6 of P.L.1991, c.123 (C.58:10A-24.6), section 3 of P.L.2009, c.282 (C.58:10A-49.1), section 10 of P.L.1977, c.224 (C.58:12A-10), or section 12 of P.L.1972, c.185 (C.58:16A-63).
20. (New section) Notwithstanding any law, rule, or regulation to the contrary, any civil administrative penalty assessed by an administrative law judge pursuant to the provisions of R.S.12:5-6, section 9 of P.L.1970, c.39 (13:1E-9), section 20 of P.L.1989, c.34 (C.13:1E-48.20), section 8 of P.L.2005, c.54 (C.13:1E-99.89), section 10 of P.L.1971, c.176 (C.13:1F-10), section 9 of P.L.1970, c.272 (C.13:9A-9), section 21 of P.L.1987, c.156 (C.13:9B-21), section 18 of P.L.1973, c.185 (C.13:19-18), section 35 of P.L.2004, c.120 (C.13:20-35), section 10 of P.L.1973, c.309 (C.23:2A-10), section 16 of P.L.1981, c.262 (C.58:1A-16), R.S.58:4-6, section 22 of P.L.1976, c.141 (C.58:10-23.11u), section 10 of P.L.1977, c.74 (C.58:10A-10), section 6 of P.L.1991, c.123 (C.58:10A-24.6), section 3 of P.L.2009, c.282 (C.58:10A-49.1), section 10 of P.L.1977, c.224 (C.58:12A-10), or section 12 of P.L.1972, c.185 (C.58:16A-63), shall be deposited into the General Fund.
21. This act shall take effect on the 90th day after the date of enactment.
STATEMENT
This bill would remove the authority of the Commissioner of Environmental Protection to assess civil administrative penalties and would require instead that an administrative law judge assess any civil administrative penalty for a violation of an environmental law. In addition, the bill would require that penalties so assessed be deposited into the General Fund. This bill would eliminate the conflict that is created when the assessor of the penalty uses those funds for the operations of the department. The administrative penalties assessed by the department are excessive. This excess is fueled by the incentives created to levy outrageous penalties by returning those monies to the department for its day-to-day operations.
