The Enforcement Process
PART 800 – ENFORCEMENT OF CRM PERMITS
§ 15-10-801 PURPOSE
The provisions of this PART are intended to establish procedures whereby
the CRM Administrator may enforce the terms and conditions of CRM permits.
Final actions of the CRM Administrator based upon this section are final
agency action reviewable directly by the Commonwealth Superior Court pursuant
to the Administrative Procedure Act, 1 CMC § 9101, et seq.
§ 15-10-805 GROUNDS FOR ACTION
The CRM Administrator shall take action to enforce compliance with CRM program
policies and CRM permit conditions in any of the following cases:
(a)Misstatement. The CRM permit applicant, a party or any participant in
a hearing on the CRM permit application made a material misstatement that
directly and significantly affected the CRM permit decision.
Permit Violation. The CRM permit applicant or its successor in interest,
has violated a material term or condition of the CRM permit. Supervening
Illegality. The permitted project, as constructed or operated, has become
unlawful by subsequent case law, statute, regulation, or other illegality.
New Environmental Impact. The permitted project has a newly discovered adverse
environmental impact.
§ 15-10-810 WARNING
The CRM Administrator, upon a determination that a permitted project violates
one or more provisions of § 15-10-805, may issue a notice of intent
to undertake CRM permit enforcement proceedings unless the CRM permit holder
accomplishes corrective measures. This warning procedure shall not affect
nor limit the CRM Administrator's duties, powers, and responsibilities
under § 15-10-815.
§ 15-10-815 PERMIT ENFORCEMENT NOTICE
If after thirty (30) days of the date the CRM Administrator issued a notice
of intent under § 15-10-810, the CRM permit holder has failed to take
corrective action, or continues to be in violation of its CRM permit in
the case of an ongoing violation, the CRM Administrator shall issue a written
permit enforcement notice to the CRM permit holder.
(b) Content of Notice. A Permit enforcement notice shall include a statement
of facts or conduct constituting the violation and shall indicate the intended
action to be taken by the CRM Administrator. If the CRM administrator intends
to impose a fine for the violation(s), the permit enforcement notice shall
state the proposed amount of the fine. A permit enforcement notice shall
provide for permit enforcement hearings, if requested, and inform the CRM
permit holder of his or her responsibilities and rights under this part.
The notice shall inform the permit holder that unless he requests a permit
enforcement hearing within 30 days, the proposed sanction will be imposed.
Service. A permit enforcement notice shall be delivered by the CRM Office
staff in person to the CRM
permit holder, or served by certified U.S mail addressed to the CRM permit
holder, or his
designated agent. Proof of service shall be made by affidavit.
Response to Notice. If CRM permit holder believes the statement of facts
or conduct constituting violation in the permit enforcement notice is inaccurate,
and desires a permit enforcement hearing, he/she shall respond in writing
to the CRM Administrator within thirty (30) days of service of the permit
enforcement notice. This response shall include a written statement indicating
the CRM permit holder's arguments.
§ 15-10-820 EMERGENCY SUSPENSION
If the CRM Administrator determines
that a CRM permit holder has willfully violated a provision of § 15-10-805 or the public health, safety,
or welfare imperatively requires immediate action, the CRM Administrator
may order emergency summary suspension of a CRM permit pending proceedings
for revocation or other action, notwithstanding, any notice requirement
under § 15-10-815. If a permit enforcement hearing is requested, the
proceeding shall be promptly instituted and determined pursuant to § 15-10-825.
§ 15-10-825 PERMIT ENFORCEMENT HEARING
Upon receipt of a request for permit enforcement hearing, the CRM Administrator
shall schedule a hearing within fifteen (15) days. The CRM Administrator
or his designee shall preside at CRM enforcement hearings, shall control
the taking of testimony and evidence and shall cause to be made an audio
recording or stenographic record of CRM enforcement hearings. Evidence
presented at such hearings need not conform with any prescribed rules of
evidence but may be limited by the CRM Administrator in any manner she/he
reasonably determines to be just and efficient and promote the ends of
justice. Permit enforcement hearings shall conform to the provisions of
the Administrative Procedure Act, 1 CMC § 9108, et seq. The CRM Administrator
shall issue a decision within ten (10) days of the close of the enforcement
hearing and all orders shall be in writing and accompanied by written findings
of fact and conclusions of law. The standard of proof for such hearing
shall be by the preponderance of the evidence.
§ 15-10-830 REMEDIES
Upon a determination by the CRM Administrator and/or CRM agency officials
that a violation did occur, the CRM Administrator may order any or all
of the following remedies:
(c)Revocation. The CRM permit may be revoked in its entirety. Suspension.
The CRM permit may be temporarily suspended for a given period, or until
the occurrence of a given event or satisfaction of a specific condition.
Corrective Measures. Measures may be ordered of the CRM permit holder so
that the project conforms to the CRM permit terms and conditions. Civil Fines.
The CRM Administrator may impose a civil fine in an amount not to exceed
$10,000 per day for each day the violation of the CRM permit occurred pursuant
to 2 CMC § 1543(a). For purposes of computing a fine, any day that the
CRM Administrator finds that a violation of the CRM permit occurred may be
counted. The CRM Administrator shall, in his discretion, set fines in an
amount calculated to compel compliance with CRM permit conditions, applicable
law, and any order issued by the Administrator, taking into consideration
the value of the existing and potential damage to the
environment caused by the violation, efforts at compliance, and/or any other
factors that the Administrator finds relevant to the calculation.
PART 900 - ENFORCEMENT OF CRM STANDARDS AND POLICIES
§ 15-10-901 PURPOSE
The provisions of this PART are intended to establish procedures whereby
the CRM Administrator and/or CRM agency officials may enforce penalties against
persons conducting activities or participating in projects within the jurisdiction
of the CRM program without a required CRM permit. The actions of the CRM
Administrator and/or CRM agency officials based upon this PART are agency
action reviewable by the Commonwealth Superior Court.
§ 15-10-905 INVESTIGATION
(d) The CRM Administrator shall have the authority to investigate suspected
violations of CNMI P.L. 3-47 [2 CMC §§ 1501, et seq.] or this
CHAPTER. If practicable, the CRM Administrator shall first request the
person or persons having knowledge or custody of the information to voluntarily
produce or allow access to it. If voluntary production of or access to
the information is not forthcoming, the CRM Administrator may implement
the following measures to compel disclosure.
Authority to Search.
(1) Consent from Permit Application. The CRM Administrator or his designee
may enter, at any reasonable time, the site of a proposed project for which
there exists a signed CRM permit application on file with the CRM Office.
(2) Permit Authorization. The CRM Administrator or his designee may enter,
at any reasonable time, the site of a project for which there has been granted
a CRM permit.
(3) Search Warrant. The CRM Administrator may, if necessary, apply to the
Commonwealth Superior Court for a search warrant allowing entry onto a project
site on land or water subject to CRM program jurisdiction, pursuant to applicable
law of administrative searches, regardless of the existence of a pending
CRM permit application or a currently valid CRM permit.
§ 15-10-910 CONDITIONS WARRANTING INVESTIGATION
The CRM Administrator may act pursuant to this section upon a reasonable
determination that a violation of CNMI P.L. 3-47 [2 CMC §§ 1501,
et seq.] or this CHAPTER, or CRM administrative orders issued under this
CHAPTER has occurred. Such violations include, but are not limited to,
projects undertaken without a required CRM permit and activities that do
not conform to CRM permit terms and conditions under PART 800.
§ 15-10-915 WARNING
Upon a determination that a violation of law subject to CRM program jurisdiction
has occurred, the CRM Administrator may issue a cease and desist order
to the person(s) responsible for the violation and state notice of intent
to undertaken legal proceedings unless corrective measures are undertaken.
The letter shall state the corrective measures necessary and shall provide
for a period in which compliance shall be effected.
§ 15-10-920 ENFORCEMENT
Upon a determination that a person other than a CRM permit holder is in violation
of CNMI P.L. 3-47 [2 CMC §§ 15-10-920], or applicable rules and
regulations or administrative orders issued thereunder, the CRM Administrator
shall promptly issue an enforcement notice to the offending party. The
enforcement notice shall be delivered personally to the offending party
or, if such service is not reasonably possible, it may be sent by certified
mail to his residence or place of business.
(e)Content of Enforcement Notice.
(1) Completed Violation. If acts constituting a violation are complete and
the violation is not of an ongoing nature, the enforcement notice shall include
a statement of the facts and conduct constituting the violation, the amount
of an imposed fine, if any, a warning not to repeat the unlawful activity
and a statement that a hearing on the findings of violation or size of the
fine is available if the CRM Administrator is so requested, in writing, within
seven (7) days of service of the enforcement notice.
(2) Continuing Violation. If acts constituting a violation are of an ongoing
nature or likely to be repeated, the enforcement notice shall include a statement
of facts and conduct constituting the violation, a statement of an imposed,
continuing fine, if any, an order to cease and desist the activity giving
rise to a violations, a warning that additional fines may be imposed for
failure to cease and desist the prohibited activity and a statement that
an enforcement hearing on the finding of violation or size of the fine is
available if the CRM Administrator is so requested, in writing, within seven
(7) days of service of the enforcement notice. Response to Notice. If the
party to whom enforcement notice is sent objects to the finding of violation,
or seeks an enforcement hearing on the fine, he shall submit a written response
to the enforcement notice within seven (7) days of service of the enforcement
notice. Failure to provide written response or to demand an enforcement hearing
within the prescribed period shall be deemed a waiver of defense and the
right to an enforcement hearing and the fine, as set in the enforcement notice,
shall upon expiration of the seven (7) days period, become immediately due
and payable to the CNMI Treasurer. All fines shall be paid by
check made payable to the Treasurer of the CNMI. A copy of the payment receipt
shall be provided to the CRM Office by the violator.
§ 15-10-925 DETERMINATION OF FINES AND PENALTIES
The CRM Administrator shall, in his sound discretion; set fines in an amount
calculated to compel compliance with applicable law and administrative
orders and shall consider the value of the existing and potential value
of the damage to the environment proximately caused by the violation described
in PART 800 and PART 900. In no event, however, shall any fine imposed
exceed the ceiling imposed by 2 CMC § 1543. In addition the CRM Administrator
may order the offending party to cease and desist from the activity that
is in violation, take mitigation measures to cure the violation or seek
any other remedy available at law or in equity.
§ 15-10-930 ENFORCEMENT HEARING
If a written response to an enforcement notice is filed with the CRM Office
requesting an enforcement hearing it shall be conducted by CRM Administrator
pursuant to § 15-10-825. The decision of the CRM Administrator shall
be final as within the CRM program. Appeal from an enforcement decision
shall be to the Commonwealth Superior Court within thirty (30) days following
service of the CRM Administrator's written enforcement decision on the
offending party.
§ 15-10-935 ENFORCEMENT BY COMMONWEALTH SUPERIOR
COURT
Fines and cease and desist orders issued by the CRM Administrator for purposes
of enforcement constitute official agency orders and must be complied with,
by persons determined in violation of CRM program policies or CRM permit
conditions. In the event fines are imposed or cease and desist order issued,
and compliance with either is refused, the CRM Administrator may file in
Commonwealth Superior Court seeking court enforcement.
§ 15-10-940 ENFORCEMENT BY CRIMINAL PROSECUTIONS
If the CRM Administrator has reason to believe that a person in violation
of CRM program policies or CRM permit conditions or administrative orders
issued thereunder has committed criminal offense within the definition
provided in 2 CMC 1543 (b), (d), he shall promptly submit a report of the
violation to the Attorney General.
§ 15-10-945 ADMINISTRATIVE ORDER
For purposes of PART 800 and 900 administrative orders shall be any orders
issued by the CRM Administrator for enforcement of CRM policies and regulations
pursuant to 2 CMC § 1453(a).