On appeal from the New Jersey Department of Environmental Protection.
Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Michels, P.J.A.D.
Appellant Schaible Oil Company (Schaible) appeals from a final administrative order of respondent Department of Environmental Protection (Department) that denied as untimely its request for a hearing with respect to an order imposing a $69,750 penalty for violations of the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.
Schaible, a retail fuel oil distribution and service company, operates a facility located in Springfield, New Jersey. In 1985, Schaible received a New Jersey Pollutant Discharge Elimination Permit, imposing limits on the pollutant discharge allowed from the Springfield facility. On March 13, 1989, the Department issued an Administrative Order and Notice of Civil Administrative Penalty Assessment to Schaible for violations of the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq. The Department cited Schaible for discharging pollutants in violation of its permit and N.J.S.A. 58:10A-6 and assessed Schaible a $69,750 penalty. The order further provided that payment of the penalty was due when the Commissioner issued a final order subsequent to an administrative hearing challenging the penalty assessment or if no hearing was requested, when the notice became a final order. Specifically, the Notice of Civil Administrative Penalty Assessment provided:
13. If no request for a hearing is received within twenty (20) calendar days from receipt of this Notice of Civil Administrative Penalty Assessment, it shall become a final order upon the twenty-first calendar day following its receipt by Schaible, and the penalty shall be due and payable.
NOTICE OF RIGHT TO A HEARING
14. Schaible is entitled to an administrative hearing. Any hearing request shall be delivered to the address referenced in paragraph 12 above within twenty (20) calendar days after receipt by Schaible of this Administrative Penalty Assessment.
Schaible received the Notice of Civil Administrative Penalty Assessment on March 16, 1989.
On April 10, 1989, Schaible requested an administrative hearing on the penalty assessment. On May 12, 1989, the Department denied Schaible's request because "[t]he Department received Schaible Oil's hearing request on April 10, 1989, twenty-five (25) days after Schaible Oil had received the Administrative Order and Notice of Civil Administrative Penalty Assessment." The Department informed Schaible that the administrative order was final because Schaible failed to timely request a hearing and therefore, the $69,750 penalty was due. Schaible appealed and we stayed the penalty pending appeal.
Schaible claims that the Department erred in denying its request for an adjudicatory hearing and that the statutory time limitation of 20 days should be tolled 5 days in this case. Schaible argues that the denial of a hearing in this matter would create a miscarriage of justice. We disagree.
The statutory time limitation for requesting an adjudicatory hearing is mandatory and jurisdictional. Firmly embedded in our law is the principle that "[e]nlargement of statutory time for appeal to a state administrative agency lies solely within the power of the Legislature . . . and not with the agency or the courts." Hess Oil & Chem. Corp. v. Doremus Sport Club, 80 N.J. Super. 393, 396, 193 A.2d 868 (App.Div.1963), certif. denied, 41 N.J. 308, 196 A.2d 530 (1964) (citations omitted). See Borough of Park Ridge v. Salimone, 21 N.J. 28, 46-47, 120 A.2d 721 (1956); Department of Community Affairs v. Wertheimer, 177 N.J. Super. 595, 599-600, 427 A.2d 592 (App.Div.1980); In re ...