Current through Register Vol. 56, No. 6, March 18, 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.
