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Midland Glass Co. v. Department of Environmental Protection

Decided: September 3, 1975.

MIDLAND GLASS COMPANY, INC., APPELLANT,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, DIVISION OF ENVIRONMENTAL QUALITY, RESPONDENT



Collester, Lora and Handler.

Per Curiam

This is a consolidation of two appeals taken by Midland Glass Company, Inc. (Midland) from administrative orders issued by the Department of Environmental Protection, Division of Environmental Quality (Department) as a result of Midland's alleged violation of the Air Pollution Control Code. Both cases involve the question of whether the time period within which one aggrieved by an order of the Department must request a hearing is mandatory and, if so, whether it can be extended by the administrative agency. However, since the cases are factually distinguishable they will be dealt with separately.

I

In one case (A-3082-73) the Department on September 28, 1973 issued an order directing that Midland cease violation of N.J.A.C. 7:27-8(a) and (b) on or before October 16, 1973. More particularly, the Department charged that Midland had installed certain boosting equipment on the furnaces of its glass manufacturing plant without first having obtained a permit to install the same or a certificate

to operate the equipment, as required by the Code. The order specifically notified Midland that it had 15 days within which to request an administrative hearing, pursuant to N.J.S.A. 26:2C-14.1. Midland did not request a departmental hearing until October 23, 1973. Thereafter on May 23, 1974 the Department denied the request for a hearing because it was not made within the 15 days required by N.J.S.A. 26:2C-14.1. Midland appealed.

N.J.S.A. 26:2C-14 provides that if upon investigation and inspection the Department discovers a person is violating any code, rule or regulation promulgated by the Department it may issue an order requiring that such violation must cease. N.J.S.A. 26:2C-14.1, provides in pertinent part, that:

Any person aggrieved by an order of the department under this act may, upon application made within 15 days after notice thereof, be entitled to a hearing before the department which shall within 30 days thereafter hold a hearing of which at least 15 days written notice shall be given to such persons.

Midland contends that the 15-day period in which a hearing may be requested under the statute is permissive and not mandatory. The Department asserts that the statutory period is mandatory and therefore the Department does not have jurisdiction to extend the 15-day time limitation established by the Legislature.

Appellant argues that the 15-day time limitation of N.J.S.A. 26:2C-14.1 is permissive because of use of the word "may." We do not agree. The punctuation of the statute clearly indicates that the word "may" does not refer to the 15-day time limitation provision but to the fact that a person aggrieved by the order may request a hearing. Moreover, the word "may" used in other statutes granting the right to an administrative hearing has not been construed to affect the time limitations imposed by the statutes. See Hess Oil & Chem. Corp. v. Doremus Sport Club , 80 N.J. Super. 393 (App. Div. 1963); certif. den. 41 N.J.

308 (1964); Scrudato v. Mascot S. & L. Assn. , 50 N.J. Super. ...


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