N.J. Admin. Code § 7:38-1.5 - Requests for adjudicatory hearings

Current through Register Vol. 54, No. 7, April 4, 2022

(a) Subject to the limitations of (e) below, a person may request an adjudicatory hearing to contest any of the following decisions under this chapter:
1. A Highlands applicability determination;
2. A Highlands Resource Area Determination;
3. A Highlands Preservation Area Approval;
4. A Highlands Preservation Area Approval with waiver (including when applicable, brownfield designation); and
5. A Highlands general permit authorization.
(b) A person seeking to contest any administrative order or a notice of civil administrative penalty assessment imposed pursuant to 13:20-35 and this chapter shall do so in accordance with 7:38-13.13.
(c) A request for an adjudicatory hearing shall:
1. Be in writing on a hearing request form available from the Department 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

PO Box 402

Trenton, New Jersey 08625-0402.

ii. Submit a copy of the request to:

Land Use Regulation Program

Attention: Director

Department of Environmental Protection

PO Box 439

Trenton, NJ 08625-0439.

(d) If a hearing request does not include a specific admission, denial or explanation of each fact alleged, or a statement that the person is without knowledge thereof, the facts alleged in the Department notice or decision shall be deemed to have been admitted.
(e) Nothing in this section shall be construed to provide a right to an adjudicatory hearing in contravention of 52:14B-3.1 through 3.3.
(f) To contest a Department determination or decision listed at (a) above, a person shall submit a hearing request no later than 30 days after notice of the decision or determination is published in the DEP Bulletin. If a person submits the hearing request after this time, the Department shall deny the request. The DEP Bulletin is available through the Department's website at www.state.nj.us/dep.
(g) 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, it shall also notify the requester of the procedures and schedule for mediation.
(h) A request for a hearing by a permittee shall automatically stay the effectiveness of the HPAA which is the subject of the hearing request, unless the permittee shows good cause to the Department in writing why the HPAA should continue in effect while being contested. A permittee requesting a hearing shall immediately stop all activity regulated by that permit until the matter is resolved, unless the Department grants an exception in writing. A person requesting a hearing concerning an HRAD issued to him or her shall ensure that the area containing the Highlands resource is preserved in the condition existing when the HRAD was issued. If a person other than the permittee requests a hearing, the requester may ask the Department to stay the HPAA that is the subject of the hearing request. The Department shall grant the request for a stay of the HPAA for good cause shown, or may allow certain regulated activities pending hearing and decision, upon such terms and conditions the Department deems appropriate.
(i) The Department shall notify the requester if the request for a hearing is granted and, if denied, the reason 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.
(j) 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 any regulated activity, public 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" to the following persons using the notice form available at the address in 7:38-1.3(a)1 or 2, as applicable:
i. Each person provided notice of the application for the HPAA or determination that was being appealed; and
ii. Each person who submitted a timely, written comment on the application to the Department;
2. The Department shall publish the notice of intent to settle in the DEP Bulletin, and shall accept comments on the notice for at least 30 calendar days;
3. After the 30-day comment period, the person who requested the hearing shall send a "notice of settlement" by certified mail to the following persons using the form available at the address in 7:38-1.3(a)1 or 2, as applicable:
i. Each person provided a "notice of intent to settle" under (a)1 above; and
ii. Each person who submitted a written comment to the Department on the notice of intent to settle within the 30-day comment period provided 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.
(k) 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 findings of fact and conclusions of law in 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.
(l) The Commissioner's final decision under (k) above may be appealed to the Appellate Division of the Superior Court, within the time provided by court rule.

Notes

N.J. Admin. Code § 7:38-1.5
Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
In (a)3, deleted "and" from the end; in (a)4, substituted "; and" for a period at the end; added (a)5; in (c)1iv, substituted "notice" for "Notice"; and rewrote (c)2.

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