N.J. Admin. Code § 7:7-29.10

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

Section 7:7-29.10 - Grace period applicability; procedures

(a) Each violation of N.J.S.A. 13:19-1 et seq., 12:5-1 et seq., and 13:9A-1 et seq. identified in Table A at (f) below by an "M" in the Type of Violation column for which the conditions of (d)1 through 6 below are satisfied, and each violation determined under (c) below as minor for which the conditions of (d)1 through 9 below are satisfied, is a minor violation and is subject to a 30-calendar-day grace period.

(b) Each violation of N.J.S.A. 13:19-1 et seq., 12:5-1 et seq., and 13:9A-1 et seq. identified in Table A at (f) below by an "NM" in the Type of Violation column is a non-minor violation and is not subject to a grace period.

(c) If a violation of N.J.S.A. 13:19-1 et seq., 12:5-1 et seq., and 13:9A-1 et seq. is not listed in Table A at (f) below, the designation of the violation as minor or non-minor is determined as follows:

1. If the violation is not listed in Table A at (f) below but is comparable to a violation designated as "M" in Table A and the violation meets all of the criteria of (d)1 through 6 below, then the violation is minor. The minor violation shall be subject to a grace period of 30 calendar days as described at (e) below.

2. If the violation is not listed in Table A at (f) below and is not comparable to a violation listed in Table A but the violation meets all of the criteria of (d)1 through 9 below, the violation is minor. The minor violation shall be subject to a grace period of 30 calendar days as described at (e) below.

3. If the violation is not listed in Table A at (f) below but is comparable to a violation designated as "NM" in Table A, then the violation is a non-minor violation and is not subject to a grace period.

4. If the violation is not listed in Table A at (f) below and is not comparable to a violation listed in Table A, and the violation does not meet all of the criteria at (d)1 through 9 below, the violation is non-minor and is not subject to a grace period.

5. Comparability of a violation to a violation in Table A at (f) below is based on the nature of the violation(s) (for example, recordkeeping, accuracy of information provided to the Department, amount and type of impacts to the protected resources). A violation shall not be considered comparable to any violation designated as "M" in Table A unless the violation also meets the criteria at (d)7 through 9 below.

(d) The Department shall provide a grace period of 30 calendar days for any violation identified as minor under this section, provided the following conditions are met:

1. The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

2. The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the Department or a local governmental agency;

3. In the case of a violation that involves a permit, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local governmental agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;

4. In the case of a violation that does not involve a permit, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local governmental agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;

5. In the case of a violation of the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq.; the Wetlands Act of 1970, N.J.S.A. 13:9A-1 et seq., or any rule or regulation promulgated thereunder, or permit issued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement action by the Department or a local governmental agency as responsible for the same or a substantially similar violation at the same site or any other site within the preceding 12-month period;

6. In the case of any violation, the person responsible for the violation has not been identified by the Department or a local governmental agency as responsible for the same or substantially similar violations at any time that reasonably indicate a pattern of illegal conduct and not isolated incidents on the part of the person responsible;

7. The violation poses minimal risk to the public health, safety and natural resources;

8. The violation does not materially and substantially undermine or impair the goals of the regulatory program; and

9. The activity or condition constituting the violation is capable of being corrected and compliance achieved within the time prescribed by the Department.

(e) For a violation determined to be minor under (a) or (c) above, the following provisions apply:

1. The Department shall issue a notice of violation to the person responsible for the minor violation that:

i. Identifies the condition or activity that constitutes the violation and the specific regulatory provision or other requirement violated; and

ii. Specifies that a penalty may be imposed unless the minor violation is corrected and compliance is achieved within the specified grace period of 30 calendar days.

2. If the person responsible for the minor violation corrects that violation and demonstrates, in accordance with (e)3 below, that compliance has been achieved within the specified grace period, the Department shall not impose a penalty for the violation.

3. In response to a notice of violation, the person responsible for the minor violation shall submit to the Department, before the end of the specified grace period, written information, signed and certified to be true by the responsible person or his or her designee, detailing the corrective action taken or how compliance was achieved.

4. If the person responsible for the minor violation seeks additional time beyond the specified grace period to achieve compliance, the person shall request an extension of the specified grace period in writing no later than one week before the expiration of the specified grace period. The request shall include the anticipated time needed to achieve compliance, the specific cause or causes of the delay, and any measures taken or to be taken to minimize the time needed to achieve compliance. The request shall be signed and certified to be true by the responsible party or their designee. The Department may, in its discretion, approve in writing an extension which shall not exceed 90 calendar days, to accommodate the anticipated delay in achieving compliance. In exercising its discretion to approve a request for an extension, the Department may consider the following:

i. Whether the violator has taken reasonable measures to achieve compliance in a timely manner;

ii. Whether the delay has been caused by circumstances beyond the control of the violator;

iii. Whether the delay will pose a risk to the public health, safety and natural resources; and

iv. Whether the delay will materially and substantially undermine or impair the goals of the regulatory program.

5. If the person responsible for the minor violation fails to demonstrate to the Department that the violation has been corrected and compliance achieved within the specified grace period, or within any approved extension, the Department may, in accordance with the provisions of this chapter, impose a penalty that is retroactive to the date on which the notice of violation under (e)1 above was issued.

6. The person responsible for a minor violation shall not request more than one extension of a grace period specified in a notice of violation.

(f) The designations of violations relating to N.J.S.A. 13:19-1 et seq., 13:9A-1 et seq., and 12:5-1 et seq. and this chapter as minor (M) or non-minor (NM) are set forth in Table A below. The violation descriptions are provided for informational purposes only. In the event that there is a conflict between a violation description in Table A and the rule to which the violation description corresponds, the rule shall govern.

Table A

Rule Citation	Violation Description	Type of Violation
N.J.A.C. 7:7-2.2, 7:7-2.3, and 7:7-2. 4	Conducting regulated or prohibited activities under CAFRA, Wetlands Act of 1970, and/or Waterfront Development Statutes without prior Department approval	NM
N.J.A.C. 7:7-8.2 and 7:7-27.3	Failure to submit a request to continue construction beyond the expiration of a permit no later than 20 working days prior to expiration of the permit, excluding permits authorizing activities located waterward of the mean high water line	M
N.J.A.C. 7:7-17.9, 7:7-17.11, 7:7-17. 13, and 7:7-17.22	Failure to execute and record the conservation restriction that meets the requirements of N.J.A.C. 7:7-18	NM
N.J.A.C. 7:7-17.11 and 7:7-17.13	Failure to submit a construction completion report for the mitigation site within the required time frame of completion of construction	M
N.J.A.C. 7:7-17.11 and 7:7-17.13	Failure to submit an annual monitoring report at the required intervals following completion of construction of the mitigation site	M
N.J.A.C. 7:7-17.11 and 7:7-17.13	Failure to demonstrate to the Department at the end of the monitoring period that the mitigation project is successful	M
N.J.A.C. 7:7-17.11 and 7:7-17.14	Failure to provide the government agency or charitable conservancy with a maintenance fund for the mitigation area transferred to the government agency or charitable conservancy	NM
N.J.A.C. 7:7-17.11 and 7:7-17.14	Failure to apply to the Wetlands Mitigation Council for approval of the amount of monetary contribution	NM
N.J.A.C. 7:7-17.11 and 7:7-17.14	Failure to apply to the Wetlands Mitigation Council for approval of the particular parcel of land to be donated following the Department's determination that land donation is the appropriate mitigation alternative	NM
N.J.A.C. 7:7-17	Failure to conduct mitigation as required by a Department approval or administrative order	NM
N.J.A.C. 7:7-17	Failure to comply with all conditions of a mitigation plan	NM
N.J.A.C. 7:7-18	Failure to submit proof that a conservation restriction has been recorded	M
N.J.A.C. 7:7-21.3	Failure to comply with the terms of an emergency authorization.	NM
N.J.A.C. 7:7-21. 3(e)	Failure to file a complete permit application and "as built" site plans for completed activities within 90 calendar days after verbal approval	NM
N.J.A.C. 7:7-21.3(i)	Failure to modify the activities to comply with the requirements of this chapter where directed to do so by the Department	NM
N.J.A.C. 7:7-23	Submittal of false information by the applicant, its consultants and/or agents	NM
N.J.A.C. 7:7-23. 2(k)	Failure to provide complete and accurate information of which an applicant or its agents are aware, or reasonably should have been aware	NM
N.J.A.C. 7:7-24.2	Failure to provide timely public notice of an application	M
N.J.A.C. 7:7-24. 3(a)	Failure to provide verification that a copy of the entire application has been submitted to the municipal clerk	M
N.J.A.C. 7:7-24. 3(b)	Failure to provide notice of the application to the following entities: construction official, environmental commission, county planning board, municipal planning board, local soil conservation district, and all owners of real property and easements within 200 feet of the property boundary of the site	M
N.J.A.C. 7:7-24. 3(e)	Failure to provide verification that a copy of the entire application has been to the Pinelands Commission	M
N.J.A.C. 7:7-27. 2(c)6	Failure to inform the Department of adverse effects on the environment not described in the application or in the conditions of the permit	NM
N.J.A.C. 7:7-27. 2(c)10	Failure to minimize noise during construction	NM
N.J.A.C. 7:7-27. 2(c)13iii	Failure to allow the Department reasonable access to the site	NM
N.J.A.C. 7:7-27. 2(d)3	Failure to record a permit with the county clerk	M
N.J.A.C. 7:7-27. 2(d)4	Failure to notify the Department in writing and certify that all permit conditions have been met within five working days prior to operation of a CAFRA development	M
N.J.A.C. 7:7-27. 2(d)7	Failure to comply with a permit condition that must be satisfied prior to the commencement of construction	NM
N.J.A.C. 7:7-27. 2(d)8	Failure to post and maintain permits and approved site plans at the permitted site at all times	M
N.J.A.C. 7:7-27. 2(d)14	Failure to notify the Department in writing at least three working days prior to starting work under a permit	M
N.J.A.C. 7:7-27.4	Failure to submit required documentation concerning the transfer of a property	M
N.J.A.C. 7:7-27.6	Failure to submit to the Department an application for modification of a general permit authorization or individual permit, should a permittee propose a change in the development	NM
N.J.A.C. 7:7-27.6	Failure to provide public notice for request for modification of a permit authorization	M
N.J.A.C. 7:7-27.7 and 7:7-27.8	Failure to comply with the terms of a suspension or termination notice	NM
N.J.A.C. 7:7-27.8	Failure to properly remediate and restore impacts caused under a terminated permit or approval	NM

N.J. Admin. Code § 7:7-29.10

Adopted by 47 N.J.R. 1392(a), effective 7/6/2015