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Appellate Division Upholds NJDEP’s Decision Rejecting Sewerage Authority’s Phosphorus Limitation Plans

The New Jersey Appellate Division recently held that the Commissioner of the New Jersey Department of Environmental Protection (NJDEP) properly rejected the findings of an administrative law judge (ALJ) which would have allowed several northern New Jersey sewerage authorities to implement “as needed” treatment programs to limit the phosphorus content of water discharged into state waterways.

In the Matter of Adoption of Amendments to the Northeast, Upper Raritan, Sussex County and Upper Delaware Water Quality Management Plans to Establish Total Maximum Daily Loads in the Non-Tidal Passaic River Basin and Pompton Lake/Ramapo River Addressing Phosphorus Impairments and the Establish Watershed Criteria*, the Court considered amendments to the water quality management plans (WQMP) named in the case’s caption, which limited the amount of phosphorus that could be discharged into the Passaic River. The amendments were first adopted in 2008 and were appealed by sewerage authorities who collect municipal wastewater, treat it, and discharge the treated water into the Passaic River.

The basis of the appeals was that NJDEP acted arbitrarily and capriciously in requiring strict adherence to the phosphorus limitations during times of the year when the limitations would not be necessary to maintain water quality downstream from their facilities. The appellants argued instead that strict compliance was only required during certain months of the year and that they could adequately preserve water quality via as-needed treatment during the remainder of the year. NJDEP rejected this approach, characterizing it as “institutionally impracticable.” In an initial decision, the Appellate Division remanded for an evidentiary hearing on the practicality of the appellant’s proposal, as NJDEP had not explained what “institutionally impracticable” meant in reaching its decision.

After an evidentiary hearing involving the testimony of several experts the ALJ assigned to hear the matter found that NJDEP had failed to look into the feasibility of an as-needed treatment program during the off-season and that such a program was both feasible and environmentally-protective. The Commissioner of NJDEP rejected the ALJ’s conclusions and again found that the as-needed program was institutionally impractical. The appellants again challenged this finding.

Noting that the Court’s review of the agency’s decisions is limited and that the Court will afford a strong presumption of reasonableness to agency’s decisions, the Appellate Division upheld the Commissioner’s final decision, holding that it was not arbitrary or capricious. The Court held that, due to the agency’s expertise and the Commissioner’s reliance on expert opinions, the Commissioner’s decision was supported by the record and thus could not be reversed.

The attorneys at Lieberman Blecher & Sinkevich P.C., who regularly assist clients with concerns relating to compliance with state environmental regulations, will be closely following the developments in New Jersey’s water quality regulations.

*The case consisted of the consolidate appeals of the following docket nos.: A-5266-07T3, A-5271-07T3, A-5990-07T3, and A-5993-07T3.

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