13:1D-129. Rules, regulations; violation designation

5. a. The department shall promulgate rules and regulations designating specific types or categories of violations within each regulatory and enforcement program of each environmental law as minor violations and non-minor violations. In designating minor violations, the department shall utilize the criteria set forth in this section. All types or categories of violations not designated as minor violations shall be designated as non-minor violations.

b. A violation shall be designated by the department as a minor violation if:

(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 violation poses minimal risk to the public health, safety and natural resources;

(3) The violation does not materially and substantially undermine or impair the goals of the regulatory program;

(4) The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the department or local government agency;

(5) (a) The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;

(b) 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 government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;

(c) in the case of a violation of the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); R.S.12:5-1 et seq.; the "Flood Hazard Area Control Act,"P.L.1962, c.19 (C.58:16A-50 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 government 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; or

(d) in the case of any violation, the person responsible for the violation has not been identified by the department or a local government 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; and

(6) The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department pursuant to subsection b. of section 3 of P.L.1995, c.296 (C.13:1D-127).

c. Any violation subject to the mandatory assessment of civil administrative penalties pursuant to section 6 of P.L.1990, c.28 (C.58:10A-10.1) shall not be designated as a minor violation pursuant to this act.

L.1995,c.296,s.5.