90 A.3d 642
N.J. Super. Ct. App. Div.2014Background
- In 2008 the Department amended WQMPs to impose phosphorus limits (TMDLs) for the Passaic River.
- Dischargers collect and treat municipal wastewater before discharging into the Passaic River.
- Earlier studies led to a 1987 Passaic River nutrient study and ongoing efforts to set long-term standards.
- Appellants challenged the WQMPs, arguing off-season (November–April) limits were institutionally impracticable and could be applied as-needed only May–October.
- The court remanded to develop evidence on how far in advance North Jersey can predict diversions and how much lead time dischargers need to meet off-season limits.
- ALJ found off-season as-needed treatment feasible and within North Jersey’s control, but the Commissioner later ruled it institutionally impracticable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commissioner’s rejection of the off-season program was arbitrary | North Jersey contends the ALJ’s feasibility findings were correct. | Department argues the off-season program is institutionally impracticable. | Not arbitrary; substantial evidence supports impracticability. |
| Whether North Jersey can reasonably predict off-season diversions | Tao testified 2-day lead times are feasible. | Lampe suggested longer predictive lead times could be needed. | Commissioner reasonably weighed evidence; two-week or shorter lead times accepted for notice. |
| Whether dischargers can bring effluent into compliance before diversions with adequate lead time | Five days sufficient, with ponds affecting timing. | Seven days or more required, with testing timelines varying by laboratory capabilities. | Commissioner’s seven-day lead time (plus pond considerations) supported by record. |
| Whether off-season as-needed testing burdens the Department unreasonably | Off-season program imposes manageable burdens. | Program would require substantial additional staff and resources. | Commissioner’s burden assessment reasonable; agency expertise weighs against feasibility. |
Key Cases Cited
- In re Carter, 191 N.J. 474 (2007) (scope of judicial review of agency actions)
- J.D. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516 (App.Div. 2000) (standard of review for administrative decisions)
- Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988) (deference to agency expertise; substantial evidence standard)
- Freshwater Wetlands Prot. Act Rules, 180 N.J. 478 (2004) (judicial deference to agency technical expertise)
- In re Parlow, 192 N.J. Super. 247 (App.Div. 1983) (de novo review of ALJ decision by agency head)
- N.J. State League of Municipalities v. Dep’t of Cmty. Affairs, 158 N.J. 211 (1999) (deference to agency regulatory decisions)