Opinion
DOCKET NO. A-6127-10T2
03-07-2013
IN RE PETITION TO REVOKE STATEWIDE GENERAL CSO PERMIT
Susan J. Kraham (Morningside Heights Legal Services, Columbia University School of Law) argued the cause for appellants New York/New Jersey Baykeeper, Hackensack Riverkeeper and Raritan Riverkeeper (Ms. Kraham, attorney; Ms. Kraham and Edward Lloyd, on the brief). Jane F. Engel, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Engel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Nugent and Haas.
On appeal from the New Jersey Department of Environmental Protection.
Susan J. Kraham (Morningside Heights Legal Services, Columbia University School of Law) argued the cause for appellants New York/New Jersey Baykeeper, Hackensack Riverkeeper and Raritan Riverkeeper (Ms. Kraham, attorney; Ms. Kraham and Edward Lloyd, on the brief).
Jane F. Engel, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Engel, on the brief). PER CURIAM
Appellants New York/New Jersey Baykeeper, Hackensack Riverkeeper and Raritan Riverkeeper appeal from a September 15, 2011 final determination of the New Jersey Department of Environmental Protection (DEP) denying their request that a General Permit for Combined Sewer Systems issued by DEP in 2004 be revoked and reissued with new conditions. We affirm.
I.
There are two types of wastewater collection systems in New Jersey. "Separate sewer systems" contain two independent piping systems: one for "sanitary" wastewater, such as wastewater from homes, businesses and industry, and one for storm water. On the other hand, a "combined sewer system" (CSS) conveys both sanitary wastewater and storm water through one piping system to the publicly-owned sewage treatment plant (POTW).
CSSs are generally located in older, urban communities. Problems arise with these types of systems during periods of heavy rainfall or snow melt. During these events, the capacity of the combined sewer system may be exceeded. If this occurs, the combined system is designed to allow the overflow, which is comprised of a mixture of storm water and untreated sanitary waste waters (CSOs), to be discharged directly into streams and rivers instead of being conveyed to the sewage treatment plant. There are approximately 218 CSO points in New Jersey associated with the combined sewer systems of twenty-one municipalities and nine sewage treatment facilities that own or operate a portion of a combined sewer system.
In 1994, the federal Environmental Protection Agency (EPA) issued a National Control Policy for Combined Sewer Overflows, which created a framework for controlling CSO discharges through the issuance of permits. N.J.A.C. 7:14A-11, Appendix C. Under EPA's policy, permits must require implementation of minimum technology-based controls, known as the "Nine Minimum Controls."These controls are aimed at reducing the prevalence and impacts of CSOs without necessitating major construction or significant engineering studies. Ibid.
The Nine Minimum Controls are: (1) proper operation and maintenance programs for the sewer system and the CSOs; (2) maximize use of the collection system for storage; (3) review and modification of pretreatment requirements to assure CSO impacts are minimized; (4) maximization of flow to the POTW; (5) prohibition of CSOs during dry weather; (6) control of solid and floatable materials; (7) pollution prevention; (8) public notification to ensure that the public receives adequate notification of CSO occurrences and CSO impacts; and (9) monitoring to effectively characterize CSO impacts and the efficacy of CSO controls. N.J.A.C. 7:14A-11.12, Appendix C.
On June 30, 2004, DEP issued a General CSO Permit (the General Permit) to the affected municipalities to allow them to operate their combined sewer systems and to discharge CSOs when necessary. A "general permit" is a permit that authorizes a category of discharges, in this case CSOs. N.J.A.C. 7:14A- 6.13(b). In contrast, an "individual permit" is site specific and tailored to individual conditions and operations.
New Jersey General Permit for Combined Sewer Systems, New Jersey Pollutant Discharge Elimination System Permit Number NJ0105023.
The nine sewage treatment facilities that discharge CSOs do so pursuant to individual permits. These permits are not at issue in this appeal.
Prior to issuing the General Permit, DEP published and circulated a draft of the permit for public comment. Appellant NY/NJ Baykeeper provided input concerning the proposed permit during the comment period. No party, including appellants, filed a notice of appeal following the issuance of the General Permit on June 30, 2004.
The General Permit became effective on August 1, 2004. All permits of this type are issued for fixed terms not to exceed five years. N.J.A.C. 7:14A-2.7(a). Thus, the General Permit was due to expire on July 31, 2009. However, prior to the expiration date, the affected municipalities requested an administrative extension of the General Permit. Under N.J.A.C. 7:14A-2.8(a), once such a request is made, the conditions of an expired permit "are continued in force . . . until the effective date of a new permit or of authorization under a general permit, or until the effective date of denial of a permit application." Thus, the 2004 General Permit remains in effect.
On June 10, 2009, DEP proposed to renew the General Permit and solicited public comments on a draft revised permit. However, it did not move forward with this proposal.
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On April 15, 2011, appellants filed a written request that DEP revoke and replace the General Permit. This request was filed pursuant to N.J.A.C. 7:14A-16.3(a), which provides that "[a]n existing permit shall be modified, revoked and reissued, renewed, suspended, or revoked for cause as specified at N.J.A.C. 7:14A-16.4 through 16.6, as applicable, either at the request of the permittee, or a person, or upon the Department's initiative." Appellants relied upon N.J.A.C. 7:14A-16.6 as the basis for their request. In pertinent part, this regulation states:
(a) The following are causes for suspending or revoking a permit during its term, or for denying a permit renewal application:
. . . .
3. A determination by the Department that the permitted activity endangers human health or the environment which can be corrected only by suspension or revocation.
. . . .
7. Inconsistency of the permit with any duly promulgated effluent limitation, permit, regulation, statute, or other applicable State or Federal law[.]
[(Emphasis added).]
In their request, appellants asserted the General Permit should be revoked because it was inconsistent with existing State and federal law under N.J.A.C. 7:14A-16.6(a)7. They also asked DEP to find "that the permitted activity endangers human health or the environment which can be corrected only by suspension or revocation" under N.J.A.C. 7:14A-16.6(a)3.
DEP "may modify, suspend, or revoke a permit in whole or in part during its term for cause[.]" N.J.S.A. 58:10A-7b. (Emphasis added). N.J.A.C. 7:14A-16.3(c)(3) states:
(c) In response to a request submitted under (a) above, or upon its own initiative, [DEP] shall take action as follows:Significantly, however, DEP cannot revoke a permit without first affording the permittee notice of the proposed action and the opportunity for an adjudicatory hearing. N.J.S.A. 58:10A-7d provides that "[a] determination to grant, deny, modify, suspend, or revoke a permit shall constitute a contested case under the 'Administrative Procedure Act[.]' The permittee, or any other person considered a party to the action . . . shall have the opportunity to contest the determination in an administrative hearing." (Citation omitted). See also N.J.A.C. 7:14A-17.2 (setting forth requirements for requesting an adjudicatory hearing).
3. For a request for a permit suspension or revocation for one or more causes listed at N.J.A.C. 7:14A-16.6, [DEP] shall either:
i. Issue a draft permit under N.J.A.C. 7:14A-15.6, which includes only a statement of basis in accordance with N.J.A.C. 7:14A-15.7; or
ii. Deny the request for a suspension or revocation. [DEP] shall issue the requester a response letter stating the reasons for the denial. This decision is a final agency action.
[(Emphasis added).]
On September 15, 2011, DEP issued its final decision denying appellants' request that the General Permit be revoked and reissued with conditions. Appellants had argued the General Permit did not comply with State and federal law because it did "not require compliance with water quality standards and implementation of technology-based effluent limitations, and because the permitted activity endangers human health or the environment." Without addressing appellants' specific factual allegations, DEP stated it did "not agree that this existing General Permit is inconsistent with State or federal law, which would be cause for revocation pursuant to N.J.A.C. 7:14A-16.6(a)7." DEP explained:
The General Permit follows the demonstration approach, which is specifically sanctioned by the Federal Clean Water Act (33 U.S.C. 1251 et seq.) and State regulations. This
approach allows for a demonstration that a selected control program will meet the water quality standards unless the water quality standards cannot be met due to natural conditions or other pollution sources.
Moreover, DEP determined revocation of the existing General Permit was not necessary in any event because it "intend[ed] to reissue the existing general permit with revised conditions to reflect the current status of compliance with the nine minimum controls and Long Term Control Plan requirements." The revised conditions would "include compliance schedules where appropriate." Prior to beginning the reissuing process, DEP wanted to wait for the EPA to complete "water quality studies that will provide part of the scientific foundation for establishing total maximum daily loads and permit-related decisions." DEP explained that "[t]his work must be completed before water quality based effluent limits can be established and incorporated into . . . permits, including individual CSO discharges, where appropriate."
DEP also stated that it planned "to assist communities in developing strategies to address CSOs over the long term, including the development of asset management plans." DEP further explained it would "work[] to identify funding mechanisms to assist with both traditional and more non-traditional (e.g. green infrastructure) improvements to reduce CSOs." DEP predicted the "draft General Permit is expected to be open to public notice and comment in approximately six months." Thus, "based on the current steps being taken to finalize the water quality studies, [and DEP's] intent to reissue the [G]eneral [P]ermit and develop long term plans with measurable outcomes," DEP denied appellants' request to revoke the 2004 General Permit.
After appellants filed their notice of appeal, DEP advised that its plans had changed regarding the General Permit. Rather than reissue a new general permit as indicated in its September 15, 2011 final decision, DEP had decided to replace the General Permit with individual permits issued to each CSO owner, and to modify or renew existing individual permits to sewerage treatment plants that receive sewer flows. Thus, in order to replace the General Permit, DEP now proposed to issue new individual permits to the twenty-one municipalities covered by the General Permit and to modify or renew the existing individual permits currently held by the nine affected sewage treatment plants.
DEP's change of direction resulted from its dissatisfaction with the EPA's draft water quality study results. Rather than "wait for the deficiencies in the water quality study to be corrected, [DEP] decided to move forward with individual permits." DEP explained:
[DEP's] long-term goal is the eventual elimination or treatment of all CSO discharges. [DEP] intends to work collaboratively with the affected communities to develop long term plans that maximize environmental benefits while considering fiscal constraints. [DEP] also plans to work with regional utilities and their participating municipal entities in order to develop regional approaches that would include reducing and eliminating CSOs, incorporating stormwater management and addressing flood mitigation. [DEP] believes that this comprehensive approach is environmentally sound, fiscally responsible and most importantly will achieve greater water quality improvements for all pollutants more quickly.
DEP's "goal" was "to issue the first draft individual permits to CSO owners in early 2013, and to complete issuance of all of the draft individual permits to CSO owners and treatment plants that receive combined flows by early 2015." Interested parties would have the opportunity to comment on each draft individual permit and, if appropriate, a public hearing could be conducted regarding each permit. N.J.A.C. 7:14A-15.10. This process normally takes approximately one year to complete from start to finish. Thus, DEP projected the final, approved individual permits would begin to be issued in 2014 and that, by early 2015, the process would be complete for all of the affected municipalities and sewage treatment facilities.
II.
On appeal, the parties agree CSOs are a problem and that changes need to be made to the way the municipalities and sewer treatment plants which discharge them are regulated. They differ, however, as to how that should occur. Appellants argue the General Permit must be immediately revoked and then simultaneously reissued, or replaced with individual permits, with new conditions addressing their concerns. On the other hand, DEP contends it would be a waste of resources to prosecute a revocation action against each of the affected twenty-one municipalities, which could take several years to complete, when it is already in the process of issuing new, draft individual permits to replace the General Permit. After reviewing the record in light of the contentions advanced on appeal, we conclude DEP's decision to deny appellant's request to revoke the General Permit was neither arbitrary, capricious, or unreasonable and, therefore, it should be affirmed.
Administrative agency actions are presumed valid and reasonable, and "[t]he burden is on the [challenger] to overcome these presumptions." Bergen Pines Cnty. Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 477 (1984). Our role in reviewing the actions of administrative agencies is limited. In re Taylor, 158 N.J. 644, 656 (1999). We do not substitute our judgment for that of an administrative agency. In re Crown/Vista Energy Project, 279 N.J. Super. 74, 79 (App. Div.), certif. denied, 140 N.J. 277 (1995). Rather, our inquiry is limited to determining whether the agency decision violated the enabling acts, legislative policies, or the state or federal constitution; whether substantial credible evidence in the record supports that decision; and whether the decision was arbitrary, capricious, or unreasonable. Taylor, supra, 158 N.J. at 656.
Agencies are also accorded "wide latitude in improvising appropriate procedures to effectuate their regulatory jurisdiction." Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 333 (1984). "Administrative agencies possess the ability to be flexible and responsive to changing conditions." In re Pub. Serv. Elec. & Gas Co Rate Unbundling, 167 N.J. 377, 385 (2001)(citation omitted). "This flexibility includes the ability to select those procedures most appropriate to enable the agency to implement legislative policy." Ibid.
"We will ordinarily defer to an agency's construction of its enabling statute and its regulations, particularly where the Legislature has relied on the agency's expertise in enforcing a complex regulatory scheme." SJC Builders, LLC. v. New Jersey Dep't of Envtl. Prot., 378 N.J. Super. 50, 54 (App. Div. 2005). This deference is particularly appropriate where, as here, "[t]he Legislature has entrusted to the DEP the enforcement of a complex system of water pollution control." Ibid. Viewed in the light of these well-established standards, we perceive no basis for disturbing DEP's determination to deal with the General Permit in the manner it has proposed.
Relying upon N.J.A.C. 7:14A-16.3, which permits "a person" to submit a request to revoke "[a]n existing permit," appellants contend that if they can establish one of the causes for revocation set forth in N.J.A.C. 7:14A-16.6, the General Permit must be immediately revoked. However, appellants have misinterpreted this regulation. N.J.A.C. 7:14A-16.6(a) clearly states that the "causes for revocation" set forth therein are "causes for suspending or revoking a permit during its term." (Emphasis added). Here, the General Permit's five-year term expired in 2009 and the permit is now on an administrative extension.
As DEP correctly points out, the disposition of permits that have been administratively extended is governed by N.J.A.C. 7:14A-2.8, not by N.J.A.C. 14A-16.3 and 16.6. In pertinent part, N.J.A.C. 7:14A-2.8 provides:
(c) When the permittee is not in compliance with the conditions of the administratively continued permit, the Department will take one or more of the following actions:
1. Initiate enforcement action;
2. Suspend or revoke the permit in accordance with N.J.A.C. 7:14A-16.6. If the
permit is suspended or revoked, the permittee shall cease the activities that were previously authorized by the suspended or revoked permit. Otherwise, the permittee shall be considered to be operating without a permit, and be subject to appropriate enforcement action;
3. Issue a notice of intent to deny a permit application for a new permit or permit renewal, in accordance with N.J.A.C. 7:14A-15.6(a)2 and 15.10;
4. Deny a request for authorization for a general permit, in accordance with N.J.A.C. 7:14A-6.13;
5. Issue a new permit under N.J.A.C. 7:14A-15 with appropriate conditions, or issue authorization under an appropriate general permit under N.J.A.C. 7:14A-6.13; or
6. Take other appropriate actions authorized by this chapter or the State Act.
Thus, the revocation of an administratively-extended permit is but one of several regulatory options available to DEP under N.J.A.C. 7:14A-2.8(c). It may also, as it has decided to do here, propose to replace the existing General Permit with individual permits issued to each CSO owner, and to modify or renew existing individual permits to sewerage treatment plants that receive sewer flows. We defer to DEP's interpretation of its own regulations. SJC Builders, supra, 378 N.J. Super. at 54.
We disagree with appellants' contention that DEP's course of action is not a reasonable one. As the agency has explained, it makes little practical sense to initiate a costly and time-consuming revocation process against twenty-one municipalities when the General Permit has expired and is on an administrative extension. By focusing on reissuing new individual permits, with more stringent conditions, DEP will make better use of its scarce resources and reach the same end result now sought by appellants.
Indeed, appellants concede in their brief that any revocation of the General Permit should not take place unless new individual permits are "simultaneously issu[ed]" to the permittees under the General Permit. However, there is simply no need for DEP to first revoke the General Permit in order to issue the new individual permits. It may simply propose and issue the new permits. N.J.A.C. 7:14A-2.8(c)5.
Moreover, permit revocation can not be accomplished "immediately" as appellants seem to suggest. Although appellants feel they have submitted a strong basis to support a revocation proceeding, DEP disputes each and every one of their factual allegations. In addition, the affected municipalities are not parties to the present appeal and it does not even appear they were notified of the filing of appellants' request to revoke the General Permit. No permit can be revoked unless each permittee is given the opportunity to request a contested case hearing concerning the proposed revocation. N.J.S.A. 58:10A07d; N.J.A.C. 7:14A-17.2(a)1. With twenty-one municipalities covered by the General Permit, it could take several years just to complete the administrative hearing process.
On the other hand, DEP has determined that it can soon begin to publish draft individual permits. Over the next year, it will conduct any necessary public hearings, solicit and respond to public comments, and start to issue the new individual permits in 2014. We find no basis to second-guess or substitute our judgment for that of the agency charged by the Legislature with responsibility for enforcement of our State's water pollution laws. SJC Builders, supra, 37 8 N.J. Super. at 54.
Appellants express concern that DEP will not move forward on the new individual permits in a timely fashion. However, this concern is merely speculative at this stage of the proceedings. DEP has kept appellants informed of its plans to propose and issue the new individual permits and has invited them to fully participate in the permitting process. We trust DEP will comply with the public representations it has made, both to appellants and to this court.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION