Statute Gives New Jersey DEP Greater Enforcement Powers and Penalty Authority

Article

In-Sites

July 18, 2008

A bill passed in the waning days of the 2006-2007 legislative session and signed into law on January 4, 2008 gives the New Jersey Department of Environmental Protection (NJDEP) a greater variety of legal tools and authority to impose much higher penalties in the enforcement of ten different environmental statutes. The Enforcement Enhancement Bill, as it is described in an NJDEP Compliance Advisory, replaces a patchwork of enforcement provisions that in some cases limited NJDEP’s penalty authority to as little as $1,000 with a uniform set of provisions that allows NJDEP to impose penalties of up to $25,000 per violations and makes certain violations punishable as third-degree crimes.

The new legislation gives NJDEP authority to address violations via compliance orders; civil administrative penalties of up to $25,000 per violation; lawsuits seeking a variety of monetary and other sanctions; and, in the case of a person who “purposely, knowingly, or recklessly” violates the applicable statute, rule, or regulation or makes a false statement, a request that the Attorney General bring a criminal action against the violator. Criminal sanctions for such violations include imprisonment and fines up to $50,000 per violation.

The affected statutes cover a wide range of activities, and include:

  • the Waterfront Development Act (N.J.S.A. 12-5-1 et seq.);
  • the Pesticide Control (N.J.S.A. 13:1F-1 et seq.);
  • the Wetlands Act of 1970 (N.J.S.A. 13:9A-1 et seq.);
  • the Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 et seq.);
  • the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.);
  • the Endangered and Nongame Species Conservation Act (N.J.S.A. 23:2A-1 et seq.);
  • the Water Supply Management Act (N.J.S.A. 58:1A-1 et seq.);
  • the Safe Dam Act (N.J.S.A. 58:4-8.1 et seq.);
  • the Safe Drinking Water Act (58:12A-1 et seq.); and
  • the Flood Hazard Area Control Act (N.J.S.A. 58:16A-50 et seq.). 

The legislation brings all of the listed statutes into line with New Jersey’s cleanup statutes, the Industrial Site Responsibility Act (ISRA) and the Spill Compensation and Control Act (Spill Act). ISRA already permits administrative penalties of up to $25,000 ($50,000 for the second and every subsequent offense), and court-ordered penalties of up to $25,000, see N.J.S.A. 13:1K-13.1.d, -13.1.e, and the Spill Act permits both administrative and court-ordered penalties of up to $50,000. See N.J.S.A. 58:10-23.11u.c, -11u.d. Similarly, under several of the affected statutes, such as the Freshwater Wetlands Protection Act, NJDEP already had authority to impose substantial penalties. Other statues, however, authorized only meager penalties. The Waterfront Development Act, for example, authorized civil administrative penalties of up to $1,000, plus $100 per day of a continuing violation. By permitting NJDEP to impose such stiff penalties across the board, the Legislature clearly intended to remove any temptation to treat such penalties as “a cost of doing business.”

In addition to civil penalties, NJDEP can now also recover (in civil actions) a variety of costs and damages, including the reasonable costs of the investigation that uncovered the violation, the reasonable costs of preparing and bringing the lawsuit, and compensatory damages for any loss or destruction of natural resources. A Senate committee report on an early version of the bill makes clear that the reasonable costs of preparing and bringing a civil action does not cover attorneys’ fees, but rather covers only the fees of outside experts and other general litigation expenses.

With respect to three of the listed statutes (Freshwater Wetlands Protection Act, Safe Dam Act, and Flood Hazard Areas Control Act), the legislation authorizes the Commissioner of NJDEP to record, and requires the clerk or register of deeds and mortgages to record, a notice of any violation on the deed for the property where the violation occurred, with any recording fees charged to the owner of the property. The notice shall remain attached to the deed until the violation is remedied, at which time the Commissioner must order its removal.

The criminal provisions of the statute bear close attention, not just from regulated parties but also from the consultants, engineers, and attorneys who work for them. As noted above, they cover any person who “purposely, knowingly or recklessly” violates the applicable statutes, rule regulation, permit or order. They also cover any 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 applicable law, rules, regulation,. permit, or order], or who falsifies, tampers with or purposely, knowingly or recklessly renders inaccurate” a monitoring device or method. All such violations are third-degree criminal offenses, punishable by imprisonment and/or a fine of up to $50,000.

The legislation (L. 2007, c. 246) took effect immediately upon being signed into law, and NJDEP has announced its intention to use its new authority right away, even as it works on drafting new regulations to implement the legislation. A copy of the law is available on the Legislature’s website.