DEP Administrative Hearing Process
Melissa P. Abatemarco, Esq.
Director
Office of Legal Affairs
NJDEP
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DEP Administrative Hearing Process
When the department issues a permit or takes an enforcement action, it does so under one or more of the statutes that charge the department with specific environmental protection duties and responsibilities, such as the Air Pollution Control Act or the Water Pollution Control Act. When an individual or company decides to appeal the permit decision or enforcement action, the Administrative Procedure Act, or APA (N.J.S.A. 52:14B-1 et seq.), comes into play and provides the framework under which both the appellant and the department will pursue the appeal. It is important to note that the APA does not provide the right to a hearing. That right must be established by the specific statute or as a matter of constitutional due process.
To illustrate the process, assume a company has decided to appeal a permit decision or an enforcement action issued to it by the department. The first step is to file a request for an administrative hearing. The permit decision or enforcement document will explain the right to request a hearing, with a citation of the applicable environmental statute and corresponding DEP rule that provide for the right to a hearing and set the deadline by which the hearing request must be submitted. The permit or enforcement document may incorporate a hearing request form to fill out and submit to the department. If so, the form should be completed according to the instructions. All hearing requests must be submitted to the Office of Legal Affairs, which manages the hearing request process, and to the department program that issued the permit decision or enforcement document by the applicable deadline.
Since the deadlines for submitting the hearing request vary among the DEP programs, varying from as short as 10 days to as much as 30 days, it is very important to check the applicable DEP rule for the deadline. Lateness is grounds for denying a hearing request.
If the hearing request is incomplete, the department will send a letter asking for the missing information. When the request is complete, the department will determine if the matter is a "contested case" under the applicable statute and rules and, if so, send a letter granting the hearing request. The department will then transmit the case to the Office of Administrative Law (OAL) which conducts "contested case" hearings for agencies under the APA. OAL will docket the case and assign it to an Administrative Law Judge (ALJ) for hearing.
The department will arrange for a deputy attorney general to represent its interest at the hearing. The OAL's rules require that corporations be represented by an attorney, although a close corporation may be represented by a principal of the corporation.
Once the department transmits a case to the OAL, the OAL acquires jurisdiction over the matter and assigns an ALJ to manage the hearing process. The hearing is conducted in accordance with the OAL's rules, and generally proceeds like a civil trial in the courts with both sides presenting witnesses and evidence to the ALJ as fact-finder. The ALJ must issue a recommended "initial decision" within 45 days after the hearing ends and submit it to the DEP Commissioner for consideration. The parties have 13 days to submit to the department any objections, termed "exceptions" under the OAL rules, to the ALJ's initial decision.
Within 45 days from the issuance of the initial decision, unless the Commissioner seeks and is granted an extension of time by the OAL, the Commissioner must issue a "final decision" in the matter. The final decision will accept, reject, or modify the initial decision. The Commissioner's final decision is appealable only to the Appellate Division of the Superior Court, which will review the decision based on the record created during the OAL hearing.
There are several opportunities along the way for the company appealing the permit decision or enforcement action to try to settle the matter with the department and avoid going to hearing. Settlements are generally favored in the administrative hearing process, as they are in the courts, because they save time and expense and because reaching a compromise helps preserve what, in many situations, will be an on-going working relationship with the department.
The department's hearing request forms ask if the person or company submitting the hearing request is willing to try to negotiate a settlement. The OAL's rules provide a 30-day period from when an agency receives a request for hearing till transmittal of the case to OAL for the agency to attempt settlement. This 30-day period can be extended if both sides consent.
Many pre-transmittal settlements reflect agreements reached through direct negotiations between regulating programs and permittees. An alternative settlement forum is offered by the department's Office of Dispute Resolution. Here the department's dispute resolution officer mediates the settlement effort between the program and the permittee. More information about the Office of Dispute Resolution is available on the department's website at nj.gov/dep/odr.
Even after a case is transmitted to the OAL, the parties may agree to a settlement. In that event, the matter is either withdrawn by the party that requested the hearing or else the settlement is memorialized on the record, approved by the ALJ in an initial decision and then filed with the Commissioner for final decision.
A settlement, whether reached with a department program, under the auspices of the Office of Dispute Resolution or at the OAL, is the final determination of the permit or enforcement appeal and is fully enforceable.
(reprinted from the Chemistry Council of New Jersey's October 2002 Newsletter - Chemunique)
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