SUBCHAPTER 18. REQUESTS FOR ADJUDICATORY HEARINGS

 7:13-18.1 Requests for adjudicatory hearings

7:13-18.1 Requests for adjudicatory hearings

(a)   Subject to the limitations of (j) below, a person may request an adjudicatory hearing to contest a decision on any of the following actions:

1.    An application for a verification;

2.    An application for authorization to act under a general permit; or

3.    An application for an individual permit.

(b)   To contest a decision listed at (a) above, a person shall submit a hearing request within 30 calendar days after public notice of the decision is published in the DEP Bulletin. If a person submits the hearing request after this time, the Department shall deny the request.

(c)   A request for an adjudicatory hearing shall:

1.    Be in writing on a hearing request form available from the Department at the address in N.J.A.C. 7:13-1.1(f) and shall set forth:

i.     The name, address and daytime telephone number of the person requesting the hearing;

ii.    When the request is submitted by someone other than the applicant, evidence that a copy of the hearing request has been mailed to the applicant;

iii.   A copy of the Department notice or decision for which a hearing is being requested;

iv.   The Department file number or project number on the notice or decision;

v.    A statement requesting a hearing;

vi.   A specific admission, denial or explanation of each fact appearing in the Department notice or decision or a statement that the person is without knowledge thereof; and

vii.  A concise statement of the facts or principles of law asserted to constitute any factual or legal defense; and

2.    Be submitted to the Department as follows:

i.     Submit the original request to: Office of Legal Affairs Attention: Adjudicatory Hearing Requests Department of Environmental Protection P.O. Box 402401 East State Street Trenton, New Jersey 08625-0402

ii.    Submit a copy of the request to: Division of Land Use Regulation Attention: Director Department of Environmental Protection P.O. Box 439501 East State Street, Trenton, New Jersey 08625-0439

(d)   As part of a request for an adjudicatory hearing, a person may request that the Department determine whether the matter for which the adjudicatory hearing is requested is suitable for mediation by the Department's Office of Dispute Resolution. The Department shall promptly notify the requester of its determination. If the Department determines the matter is suitable for mediation, the Department shall also notify the requester of the procedures and schedule for mediation.

(e)   In some cases, a hearing request may result in a stay of operation of a general permit or individual permit being appealed, as follows:

1.    If a permittee requests a hearing to appeal any portion of its permit, the hearing request shall automatically stay operation of the permit, unless the permittee shows good cause in writing why the permit should continue in effect while being contested. All permitted activities shall stop upon the date the hearing request is submitted, and shall not be started again until the matter is resolved, unless the Department grants an exception in writing; and

2.    If a person other than the permittee requests a hearing on a permit, the requester may include with the hearing request a request for a stay of the permit. The Department shall stay operation of the permit only upon its determination that good cause exists. If a stay is imposed, all permitted activities shall stop upon the date the stay is imposed, and shall not be started again until the matter is resolved, unless the Department grants an exception in writing.

(f)   The Department shall notify the requester if the request for a hearing is granted and, if denied, the reasons why. If a hearing request is granted, the Department shall refer the matter to the Office of Administrative Law for an adjudicatory hearing in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(g)   If the Department and the person seeking a hearing agree to settle a matter for which a hearing request has been submitted under this section, and the settlement will result in Department approval of a regulated activity, notice of the settlement shall be provided as follows:

1.    The person who requested the hearing shall send by certified mail a "notice of intent to settle" the matter, using the notice form available from the Department at the address in N.J.A.C. 7:13-1.1(f), to the following persons:

i.     Each person provided public notice of the application for the permit or approval which is the subject of the appeal; and

ii.    Each person who commented on the application;

2.    The Department shall publish in the DEP Bulletin the notice of intent to settle, and shall accept comments on the public notice for at least 30 calendar days;

3.    After the 30-day comment period provided for in (g)2 above, the person who requested the hearing shall send by certified mail a "notice of settlement" using the notice form available from the Department at the address in N.J.A.C. 7:13-1.1(f), to the following persons:

i.     Each person provided a notice of intent to settle under (g)1 above; and

ii.    Each person who commented on the notice of intent to settle within the 30-day comment period provided under (g)2 above; and

4.    If the Department thereafter determines that no good cause exists for the Department to decline the proposed settlement or to significantly modify it, the Department shall publish a notice of the final settlement in the DEP Bulletin.

(h)   At the conclusion of any adjudicatory hearing in the Office of Administrative Law, the administrative law judge will submit an initial decision to the Commissioner. The Commissioner shall issue a final decision affirming, rejecting or modifying the initial decision, in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.

(i)    The Commissioner's decision under (h) above shall be considered final agency action for the purposes of the Administrative Procedure Act, and shall be subject only to judicial review in the Appellate Division of the Superior Court, as provided in the Rules of Court.

(j)    Nothing in this section shall be construed to provide a right to an adjudicatory hearing in contravention of the Administrative Procedure Act, N.J.S.A. 52:14B-3.1 through 3.3.