New Jersey § 13:9b-21

§ 13:9b-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 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 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 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 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 ; 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

may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration

of the 35-day period. 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.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 .