OFFICIAL SITE OF THE STATE OF NEW JERSEYThe 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 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.
Hearing requests are processed according to two forums:
- The Administrative Procedure Act, or the APA (N.J.S.A 52:14B-1 et. seq.)
- The Uniform Administrative Procedure Rules, or the OAL Rules (N.J.A.C 1:1 et. seq.)
1. DEP Issues a Permitting Decision or Enforcement Action
The process begins when a regulatory program from the Department issues either a Permitting Decision (like a CAFRA Permit Denial) or an Enforcement Action (like an Administrative Order).
2. The Receiving Party Submits a Hearing Request (HR).
If you would like to appeal the decision, you may submit a adjudicatory hearing request.
You must submit the Administrative Hearing Checklist and Tracking Form and all of the information requested by the Checklist. This Checklist lays out exactly what to submit for an Enforcement Action versus a Permit Decision. For more information, you can visit Submitting a Hearing Request.
Please note that Notices of Violation are not appealable, but their resulting AONOCAPA is!
3. OAHDR conducts a review, evaluating for completeness.
Once the Office of Administrative Hearings and Dispute Resolution (OAHDR) receives the hearing request, the request will be evaluated. We evaluate for completeness, timeliness, appealability, and if the matter is a contested case.
In order for a request to be granted, the Office must receive all information requested in the Administrative Hearing Checklist. If a hearing request is deficient, a notice will be sent by mail to the party to formally request the missing information.
Step 3a. If the HR is missing information, OAHDR will send a deficiency notice.
If there is missing information, OAHDR will send a deficiency notice to formally request clarification or missing information. The letter will outline what is required to send back, as well as a time frame to send the information in. Sending in the requested information will cure a deficiency, which will result in a grant.
If the missing information is not received within the allotted time frame, or if the request itself was not timely, the hearing request may be denied.
4. OAHDR will send a letter granting the hearing request.
OAHDR will send a grant letter to the party, if the hearing request is complete, timely, and demonstrating a contested case.
5. A DAG will be assigned, and the case is transmitted to OAL.
After a hearing request is granted, it is ready to proceed to an adjudicatory hearing. Your case will be assigned to a Deputy Attorney General (DAG). Our office then transmits the case to the Office of Administrative Law (OAL).
6. A hearing is conducted at OAL before an ALJ.
The hearing will be conducted at the OAL, where both the requesting party and the Department present their arguments before an Administrative Law Judge (ALJ).
7. The ALJ issues an initial decision.
After the hearing, the ALJ will issue an initial decision. The initial decision will typically be submitted within 45 days of the hearing.
8. The DEP Commissioner will prepare a final decision.
Once the initial decision is issued, the Department will review the decision. The Commissioner of the DEP will then prepare a final decision, which may modify, reject, or approve of the initial decision.
9. Once the final decision is issued, the matter is closed.
Once the final decision has been issued, the matter will be considered closed. If the petitioner does not agree with the final decision, then the decision is appealable to the Appellate Division.
There are typically two alternatives: Settlement and Alternative Dispute Resolution (ADR).
Settlement:
Settlements are generally favored in the administrative hearing process, as they are in the courts. Settlements save time and expense for both parties. Additionally, reaching a compromise helps preserve what, in many situations, will be an ongoing relationship with the Department.
Even after a case is transmitted to the OAL, the parties may agree to a settlement. In that event, the matter is considered “withdrawn” by the party, or the settlement is “memorialized” on the record. In that case, an ALJ will approve the settlement through an initial decision and file with the Commissioner for a final decision.
Alternative Dispute Resolution:
The Department’s hearing request forms ask if the person or company is willing to try to negotiate a settlement. A party can also request for mediation when submitting their hearing request.
Many pre-transmittal settlements reflect agreements reached through direct negotiations between regulating programs and permittees. An alternative settlement forum–Alternative Dispute Resolution–is offered by the Office of Administrative Hearings and Dispute Resolution. Here, a dispute resolution officer mediates the settlement effort between the program and the permittee.
A settlement, whether reached with a Department program, under the auspices of the Office of Administrative Hearings and Dispute Resolution, or at the OAL, is the final determination of the permit or enforcement appeal and is fully enforceable.
If you are not the permittee, but find that you disagree with a permitting decision, then you may submit a Third Party Hearing Request.
Third Party Hearing Requests may be submitted for a variety of reasons. In order for the request to be granted, you must submit the information required by the Administrative Hearings Checklist. In addition, you must present why you possess either a statutory or constitutional right to a hearing.
A hearing request can be withdrawn for a number of reasons. Commonly, you may withdraw a request if your problem is resolved or as a stipulation of settlement.
In the event that you would like to withdraw your hearing request, you can do so by reaching out to our office. We prefer being notified via email, as we prefer withdrawal requests in writing. In your email, you should clearly indicate that you are withdrawing your hearing request. We will confirm receipt of the withdrawal request and close out your file in our office.
We strongly recommend that, prior to withdrawing your hearing request, you either have confirmation of your problem being resolved or a signed settlement agreement. An example of this would be having written confirmation of your license being reinstated. In the event that your hearing request is withdrawn through settlement, we will close out your file – no need to reach out!