Search Site
Menu

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • Trenton Water Works has removed 25 percent of lead pipes throughout its service area. https://t.co/KUvhMsJlvU
    5 days ago
  • Opposition grows to big warehouses in small NJ towns. https://t.co/CMjgYaPMRP
    5 days ago
  • Groups plead with Governor Murphy to stop plans for new gas-fired power plant along the Passaic River in Newark. https://t.co/0yODyXEI3C
    5 days ago
  • Murphy Administration releases mapping tool to help NJ residents identify lead exposure risks in housing. https://t.co/oRL7gPVoeq
    2 months ago

Recent Blog Posts

Environmental Insurance Dispute to be Heard in New Jersey courts

On December 30, 2021 the Appellate Division of the Superior Court decided Getty Prop. Corp. v. St. Paul Fire & Marine Ins. Co. Getty Properties Corp. (“Getty”) filed an appeal
Read More
Environmental Insurance Dispute to be Heard in New Jersey courts

Governor Murphy’s NJDEP Proposes New Rule to Limit Carbon Dioxide Emissions

New Jersey Governor Phil Murphy’s administration proposed a new rule to combat greenhouse gas emissions, just before the start of his second term in office. The New Jersey Department of
Read More
Governor Murphy’s NJDEP Proposes New Rule to Limit Carbon Dioxide Emissions

Municipal Clerk can Accept Electronic Signatures

On November 30, 2021, the Appellate Division further enforced and upheld a new staple of the Covid-19 world: electronic signatures. In Township Of Montclair Committee of Petitioners et al. v.
Read More
Municipal Clerk can Accept Electronic Signatures

Appellate Division Declines to Allow Developer’s Four-Month-Late DOT Permit Appeal, Citing No Change in Circumstances

A Maple Shade Township developer’s appeal of permit conditions was untimely when they appealed four months past the deadline and without any change in circumstances justifying deadline relaxation, the Appellate
Read More
Appellate Division Declines to Allow Developer’s Four-Month-Late DOT Permit Appeal, Citing No Change in Circumstances

In the media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form