Current through Register Vol. 56, No. 18, September 16, 2024
(a) The Department's
grant of a request for an adjudicatory hearing shall not automatically stay any
contested permit condition(s). A permittee shall submit a written request to the
Department, by certified mail, or by other means which provides verification of the
date of delivery to the Department seeking a stay of any of the following:
1. Any permit condition where the permittee has
requested an adjudicatory hearing, in accordance with
7:14A-17.2(a), to
contest the specific permit condition;
2. Any permit condition where the permittee has
requested a major modification or revocation and reissuance, in accordance with
7:14A-16.4, to alter the specific permit
condition; or
3. The application to the
permittee of any condition of a general permit where the permittee has requested to
be excluded from that general permit, in accordance with
7:14A-6.13(g), to
obtain a permit condition different from the specific permit condition.
(b) A stay shall not be requested or
granted for the initial permit issued to a new source, new discharger, or a
recommencing discharger. Where such an initial permit is being adjudicated, the
permittee shall either discharge in accordance with the initial permit or not
discharge until final agency action is taken with respect to the contested
conditions of the permit.
(c) In its
request for a stay under (a)1 above, a permittee shall, for each permit condition at
issue, submit a written evaluation with appropriate documentation which describes:
1. The permittee's ability to comply with the
permit condition(s) using existing treatment facilities. For effluent limitations,
the permittee shall summarize the past 24 months of discharge data and indicate the
level of pollutant control actually achieved as defined at
7:14A-1.2. If no past effluent data are
available, the permittee shall procure and submit the results of at least one
sample;
2. The permittee's ability to
comply with the permit condition(s) by implementing low cost short-term
modifications to the existing treatment facility if it is demonstrated in (c)1
above, that the permit conditions cannot be achieved using existing facilities.
Examples of short-term modifications include, but are not limited to, treatment
process modifications, chemical addition, pollution abatement/ prevention and change
of products generated. The evaluation shall also include the cost for the
implementation of such short-term modification(s);
3. The level of pollutant control actually
achieved as defined at
7:14A-1.2 using short-term modifications
if the evaluations in (c)1 and 2 above demonstrate that the permittee is unable to
achieve permit compliance. For effluent limitations, the permittee shall indicate
the maximum treatment levels consistently achievable;
4. The cost to comply with permit conditions if
the evaluations in (c)1 and 2 above demonstrate that the permittee is unable to
achieve permit compliance using existing facilities and/or short-term modifications.
This evaluation may also include a demonstration of any negative economic impacts
that the cost to achieve permit compliance will have on the permittee (for example,
the need to close, relocate, or reduce production) and to the community (for
example, the loss of jobs or loss of tax base); and
5. Environmental impacts, if any, that granting a
stay will have on the receiving waterbody.
(d) If the Department determines that the
information submitted pursuant to (c) above is deficient, it shall inform the
permittee of its determination and establish a time limit for resubmission. If the
permittee does not submit the information requested or in the time period specified,
the Department shall:
1. Deny the stay request;
or
2. Make a final decision based upon
whatever information has been submitted.
(e) The Department may grant a stay request, in
whole or in part, based upon consideration of the following:
1. For a stay of permit conditions pursuant to
(a)1 above, where the permittee has been granted an adjudicatory hearing to contest
a specific permit condition(s), the Department, in its evaluation, shall consider:
i. The pollution source and its impact upon the
affected ecosystem(s);
ii. The level of
pollutant control actually achieved as defined at
7:14A-1.2 by the existing treatment
facility;
iii. The degree and extent
that short-term treatment alternatives including their cost may be applied to the
existing treatment facility and what treatment level improvements may result from
these alternatives; and
iv. The cost to
achieve total compliance with permit conditions, including the degree and extent of
any negative economic impacts on the permittee and the community in relation to the
environmental impacts that will result from not achieving compliance with permit
conditions.
2. For a stay of
permit conditions pursuant to (a)2 above, where the permittee has requested a major
modification or a revocation and reissuance of the existing permit to alter a
specific permit condition, the Department shall grant a stay, without the need to
request an adjudicatory hearing, if it makes a preliminary determination that a
major modification or revocation and reissuance of the existing permit is
appropriate but the Department cannot process the modification or revocation and
reissuance request in a timely manner; and
3. For a stay of the application of conditions of
a general permit pursuant to (a)3 above, where the permittee has requested to be
excluded from that general permit to obtain a permit condition different than the
specific permit condition, the Department shall grant a stay, without the need to
request an adjudicatory hearing, if it makes a preliminary determination that
exclusion from that general permit is appropriate but the Department cannot process
the request to be excluded from the general permit in a timely manner.
(f) When a stay is granted, a permittee
shall comply with the conditions of the existing permit which are not stayed and all
other interim conditions as established in (g) below. The Department reserves the
right to withdraw a stay or alter the terms and conditions of a stay at any time for
lack of good faith compliance efforts by the permittee or if the Department
subsequently determines that the environment is being impacted to such a degree that
an alteration(s) to the stayed conditions is necessary.
(g) Where the Department grants a stay request,
the stay decision may include interim conditions, as follows:
1. Interim permit conditions or interim effluent
limitations developed in accordance with the considerations in (e) above, or in
accordance with 7:14A-13.11;
2. Interim conditions by which the stayed permit
conditions are phased into effect; and
3. For a stay pending an adjudicatory hearing, the
interim conditions shall not be less stringent than the conditions in the existing
permit unless it is demonstrated that the existing permit conditions were developed
in error and a modification is justified.
(h) In granting or denying a stay, the Department
shall:
1. Detail in writing the specific permit
conditions that are stayed, if any; and
2. Include the reasons for granting or denying the
stay.
(i) The Department may,
upon its own initiative, issue a stay of a permit condition where it determines
based on the considerations in (e) above that a stay is appropriate.
(j) A person who has requested an adjudicatory
hearing in accordance with
7:14A-17.2 may also request a stay
provided notice of the request is also provided to the permittee. The Department may
grant a stay requested by a person if it is demonstrated that issuance of the permit
was based upon a substantial error(s) in interpretation of the enabling legislation
or interpretation of the applicable rules. The Department shall deny a request for a
stay if the person fails to meet the criteria for consideration as a party to the
action under 7:14A-17.3.
