IN RE NEWARK ENERGY CENTER PROPOSED AIR POLLUTION CONTROLOPERATING PERMIT MODIFICATION(NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION), A-5794-14T1

Background

Newark Energy Center (NEC) operates a natural gas power plant in Newark; its 2012 Title V air permit allowed use of gray water and sulfuric acid (limited to 10.57 tpy).
In 2014 NEC sought a significant permit modification to increase sulfuric acid use in its cooling tower (to treat gray water), asserting no increase in allowable sulfuric acid emissions.
DEP published notice, held a public hearing, received comments (public safety, spill/notification concerns), and solicited EPA review; DEP proposed approval and later issued the modification in August 2015 after EPA raised no objection.
The modification: raised permitted water tower chemical use (470 → 2267 tpy), included storage tank emissions in facility-wide sulfuric acid cap, added pH monitoring and recordkeeping, and retained the same emission caps.
Appellants (Ironbound Community Corporation & NJ Environmental Justice Alliance) challenged the modification, arguing DEP should have required public emergency response/notification plans and detailed public reports under EPCRA, the Spill Act, and CAA §112(r) before approval.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DEP had to obtain public emergency response/notification plans and detailed public reports (Spill Act/EPCRA) before issuing the Title V modification	Appellants: DEP must require compliance with Spill Act and EPCRA emergency planning/reporting prerequisites prior to permit approval	DEP/NEC: Spill Act and EPCRA impose separate requirements and enforcement mechanisms but do not condition issuance of air permits	Held: DEP acted within its authority; Spill Act and EPCRA obligations are separate and do not bar permit issuance when APCA/Title V requirements are met
Whether CAA §112(r)/CAPP rules required DEP to ensure completion of public emergency plans before permit modification	Appellants: CAA §112(r) (CAPP) was incorporated into 2012 permit and thus requires public emergency planning before modification	DEP/NEC: §112(r) applies only to listed regulated substances above threshold quantities; sulfuric acid is not a listed substance here, and §112(r) does not condition permitting decisions	Held: §112(r) does not apply to sulfuric acid here; even if it did, §112(r) does not link emergency planning compliance to Title V permit eligibility
Whether DEP’s factual determination that increased chemical use would not increase emissions was supported by the record	Appellants: Increased chemical use raises public-safety and emissions concerns and requires further proof	DEP/NEC: NEC provided calculations; DEP added monitoring/recordkeeping; EPA reviewed and raised no objections	Held: DEP’s determination is supported by substantial credible evidence; increased use did not raise permitted emissions and DEP imposed monitoring conditions
Whether DEP’s process complied with procedural requirements of Title V and APCA	Appellants: DEP failed to satisfy all statutory/regulatory prerequisites tied to emergency planning	DEP/NEC: DEP followed N.J.A.C. notice, hearing, public comment, and EPA review procedures	Held: DEP followed required notice, hearing, comment, and EPA review; process was not arbitrary or capricious

Key Cases Cited

In re Herrmann, 192 N.J. 19 (Appellate-review standard for administrative decisions)
Lavezzi v. State, 219 N.J. 163 (deference to agency reasonableness)
In re Young, 202 N.J. 50 (court should not substitute its judgment for agency)
Barrick v. State, 218 N.J. 247 (substantial credible evidence standard and review framework)
In re Carter, 191 N.J. 474 (factors for reviewing agency action applying legislative policy)
Ocean Cty. Landfill Corp. v. USEPA, 631 F.3d 652 (Title V permitting framework; state implementation with EPA oversight)
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (purpose of Title V as consolidating obligations rather than imposing substantive controls)