N.J. Admin. Code § 2:92-5.1

Current through Register Vol. 56, No. 24, December 18, 2024

Section 2:92-5.1 - Penalty and enforcement provisions

(a) Any person who violates N.J.S.A. 13:20-29.a, or any provision of this chapter, or the requirements of a Farm Conservation Plan or Resource Management System Plan developed pursuant to this chapter, shall be liable to a civil administrative penalty of up to $ 5,000 for each violation pursuant to the procedures set forth in this section to determine the amount of the penalty.

(b) Pursuant to N.J.S.A. 13:20-29.b.(1), the Department or the local Soil Conservation District may institute a civil action in the Superior Court for injunctive relief to prohibit and prevent the violation(s) and the court may proceed in a summary manner.

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

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

1. The seriousness of the violation shall be classified as major, moderate or minor and assigned points as follows:

i. Major violation shall include an intentional, deliberate, purposeful, knowing or willful act or omission by the violator and is assigned three points;

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

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

2. The percentage of agricultural impervious cover shall be assigned points as follows:

i. A violation impacting nine percent or more new agricultural impervious cover is assigned two points; and

ii. A violation impacting at least three percent but less than nine percent new agricultural impervious cover is assigned one point.

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

Penalty points table
Penalty Amount
Total Points	Per Day
5 or more	$ 5,000
4	$ 4,000
3	$ 3,000
2	$ 2,000

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

1. Assessment of a civil administrative penalty pursuant to (c), (d) and (e) above, or opportunity to correct the violation pursuant to (f)2 below.

2. If a Farm Conservation Plan or Resource Management System Plan has been developed, but not fully implemented, the Department shall determine the status of compliance with the plan. Where a violation is found, the Department may allow 60 days to correct the violation, before imposing a civil administrative penalty.

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

1. The violator's compliance history;

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

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

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

5. Other specific circumstances of the violator or violation.

(h) No assessment shall be levied until after the party has been notified by certified mail or personal service and has been provided an opportunity for a hearing, in accordance with N.J.A.C. 2:1-3.1 0(a).

(i) Any amount assessed shall take into account the seriousness and duration of the violation and whether the violation involves the failure to prepare or to implement a Farm Conservation Plan or Resource Management System Plan and shall also provide for an enhanced penalty if the violation causes an impairment to water quality, depending on the severity of the impairment. Any civil administrative penalty assessed under this may be adjusted by the Secretary of Agriculture upon the posting of a performance bond by the violator, or upon such terms and conditions as the Secretary may establish by regulation.

(j) Any person who fails to pay a civil administrative penalty in full shall be subject, upon order of a court, to a civil penalty of up to $ 5,000 for each violation. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense. Any such civil penalty imposed may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L. 1999, c. 274 (N.J.S.A. 2A:58-10 et seq.).

(k) All penalties collected pursuant to this chapter shall either be used, as determined by the Highlands Water Protection and Planning Council (Highlands Council), by the State Agriculture Development Committee for the preservation of farmland in the preservation area or by the State development transfer bank used or established by the Highlands Council to purchase development easements/credits in the preservation area.

1. The Department will forward quarterly reports to the Highlands Council and the State Agriculture Development Committee detailing any civil penalties collected pursuant to these rules.

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

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

N.J. Admin. Code § 2:92-5.1