SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
[NOTE: This is a companion case to IMO Freshwater Wetlands Statewide General Permits ,
A-115-04, also filed today]
Argued September 27, 2005 -- Decided January 11, 2006
LaVECCHIA, J., writing for a unanimous Court.
This appeal involves the Water Pollution Control Act (WPCA), N.J.S.A. 58: 10A-1 to
-43, and the hearing rights that it confers in respect of pollution discharge
permits issued by the New Jersey Department of Environmental Protection (DEP). Specifically, we
are called on to examine a hearing-right claim advanced by an entity, not
the WPCA permit applicant, requesting “party” status pursuant to N.J.S.A. 58: 10A-7e.
The WPCA governs the process for issuance of pollution discharge permits, thereby providing
a comprehensive water pollution control and enforcement program for the protection of the
State’s waters. The WPCA makes unlawful the discharge of any pollutant into the
State’s surface or ground waters without either a valid New Jersey Pollutant Discharge
Elimination System (NJPDES) permit or an exemption from the permit requirement. Asbury Park
held NJDES permit no. 25241 (Permit). It was due to expire on August
31, 2000. Asbury Park applied for the Permit’s renewal. The DEP published a
draft permit consistent with N.J.A.C. 7: 14A-15.10, thus commencing a thirty day period
within which the public could comment on DEP’s proposed action.
Clean Ocean Action (COA) is an organization devoted to environmental interests. It applied
for party status under N.J.S.A. 58: 10A-7e in connection with Asbury Park’s permit
renewal application. COA submitted lengthy negative comments on the proposed Permit that, on
the whole, characterized the Permit as not adequately protective of the ocean ecosystem
and as violative of the federal Clean Water Act. COA sought an administrative
hearing to challenge the DEP’s proposed determination. The Commissioner of the DEP denied
COA’s hearing request, concluding that because COA had failed “to demonstrate the existence
of a significant issue of law or fact that is likely to [a]ffect
the permit decision,” it had not met the statutory requirements for party status
and, therefore, COA could not compel an administrative hearing. The Permit issued in
final form on May 30, 2002.
COA appealed and sought from the Appellate Division an order transferring the matter
to the Office of Administrative Law (OAL) either for an adjudicatory hearing on
the substance of COA’s issues., or to have an administrative law judge (ALJ)
assigned to make the threshold determination whether COA had met the requirements to
a hearing. The panel rejected both applications by COA and concluded that the
Commissioner’s denial of the hearing request was not arbitrary or capricious.
We granted COA’s petition for certification and now affirm the judgment of the
Appellate Division.
HELD: Based on our review of the Department of Environmental Protection’s responses to
Clean Ocean Action’s comments it is clear that there are no adjudicative facts
in issue, and that COA’s reasons for requesting party status do not merit
the grant of an adjudicatory hearing.
1. The New Jersey Administrative Procedures Act (APA), N.J.S.A. 52: 14B-1 to -24,
“prescribes the procedure to be followed in the event an administrative hearing is
otherwise required by statutory law or constitutional mandate.” In re Application of Modern
Indus. Waste Serv., Inc.,
153 N.J. Super. 232, 237 (App. Div. 1977). The
APA and its implementing regulations afford enhanced notice and hearing procedures to “contested
case” litigants, but it does not confer the right to such a hearing,
except in the sole instance recognized in N.J.S.A. 52: 14B-11 (governing license revocations
and renewals.). Generally, constitutional and statutory rights and remedies are reserved for persons
directly affected by a permitting decision. A hearing right also may exist for
a non-applicant to a permit if that third party can demonstrate a particularized
property interest of constitutional significance that is directly affected by an agency’s permitting
decision. In this State there has been legislative recognition of the benefits derived
from a rigorous review standard when inquiring into the existence of a particularized
property interest that generates a third-party hearing right. Accordingly, state agencies are prohibited
from granting third-party hearing rights through promulgation of a regulation unless a hearing
right exists as a matter of federal law or state statute. (Pp. 6-9)
2. In 1990, the WPCA was amended to expand party status to challenge
a discharge permit issued by the DEP. The hearing right added by amendment
dispensed with any requirement that a challenger demonstrate a particularized property right that
would be directly affected by a permit’s issuance and, instead, conferred “party” status
when specified criteria were met. More specifically, to obtain a hearing right as
a “party” under the WPCA, the requestor procedurally must have raised its objections
to the DEP’s permitting decision during the applicable public comment opportunity and, substantively,
must present a significant issue of law or fact that is “likely to
affect the permit determination.” N.J.S.A. 58: 10A-7e (3). The WPCA amendment ultimately enacted
appears congruent with prior decisions addressing when a trial-type adjudicatory hearing is appropriate
in administrative law settings, i.e. when there is a triable dispute involving adjudicative
facts. (Pp. 9-17)
3. We are convinced, upon review of COA’s comments and DEP’s responses, that
COA’s reasons for requesting party status do not merit the grant of an
adjudicatory hearing. In the future, however, the agency is on notice that it
must prepare an integrated hearing denial decision. That document must explain the reasons
why the DEP Commissioner has concluded that a third party’s hearing request does
not meet the statutory standard for a hearing in respect of the specific
grounds raised. Reliance on DEP’s earlier consideration and rejection of those grounds is
insufficient. The denial document must present the basis for the Commissioner’s decision. A
conclusory response neither informs the third party adequately nor provides a proper basis
for judicial review. In this instance, based on our review of the DEP’s
responses to COA’s comments, it is clear that there are no adjudicative facts
in issue. (Pp. 17-20)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in
JUSTICE LaVECCHIA’s opinion.
SUPREME COURT OF NEW JERSEY
A- 116 September Term 2004
IN RE NJPDES PERMIT NO. NJ0025241 ISSUED TO ASBURY PARK CITY
Argued September 27, 2005 – Decided January 11, 2006
On certification to the Superior Court, Appellate Division.
Susan J. Kraham, Staff Attorney, Rutgers Environmental Law Clinic, argued the cause for
appellant, Clean Ocean Action.
A. Colleen Malloy, Deputy Attorney General, argued the cause for respondent, New Jersey
Department of Environmental Protection (Peter C. Harvey, Attorney General of New Jersey, attorney;
Patrick DeAlmeida, Assistant Attorney General, of counsel; Caroline K. Stahl, Deputy Attorney General,
on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal involves the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -43,
and the hearing rights that it confers in respect of pollution discharge permits
issued by the New Jersey Department of Environmental Protection (DEP). Specifically, we are
called on to examine a hearing-right claim advanced by an entity, not the
WPCA permit applicant, requesting “party” status pursuant to N.J.S.A. 58:10A-7e. That statute entitles
those with such status to an administrative hearing to contest the grant of
a WPCA pollution discharge permit.
Clean Ocean Action (COA) is an organization devoted to environmental interests. It applied
for party status under N.J.S.A. 58:10A-7e in connection with a WPCA permit application
submitted by the City of Asbury Park (Asbury Park). COA sought an administrative
hearing to challenge the DEP’s proposed determination renewing the pollution discharge permit for
Asbury Park’s wastewater treatment facility. Because the DEP denied COA’s hearing request and
granted the permit, actions which were affirmed by the Appellate Division, COA sought
relief from this Court. We granted the petition for certification to review COA’s
claim of DEP noncompliance with the WPCA standard for entitlement to this statutorily
created, third-party hearing right. In re NJPDES Permit No. NJ0025241,
183 N.J. 257
(2005). We now affirm the judgment of the Appellate Division.
The WPCA governs the process for issuance of pollution discharge permits, thereby providing a comprehensive water pollution control and enforcement program for the protection of the State’s waters. Simply stated, the WPCA makes unlawful the discharge of any pollutant into the State’s surface or ground waters without either a valid New Jersey Pollutant Discharge Elimination System (NJPDES) permit or an exemption from the permit requirement. N.J.S.A. 58:10A-6a. The statute empowers the DEP Commissioner to grant, deny, modify, suspend, revoke, and reissue NJPDES permits. N.J.S.A. 58:10A-6c.
Asbury Park held NJPDES permit no. 25241 (Permit). It was due to expire on August 31, 2000. The Permit enabled the Asbury Park Water Quality Control Facility (Facility) to discharge treated, disinfected, domestic wastewater into the Atlantic Ocean. When Asbury Park applied for the Permit’s renewal, the Facility had a permitted monthly average flow of 4.4 million gallons per day and was discharging into the State’s waters a monthly average flow of 1.6 million gallons per day. In response to that application, the DEP prepared and published a draft permit consistent with N.J.A.C. 7:14A-15.10, thus commencing a thirty day period within which the public could comment on DEP’s proposed action. Although there were other comments, we focus here on those submitted by COA.
COA submitted lengthy negative comments on the proposed Permit that, on the whole, characterized the Permit as not adequately protective of the ocean ecosystem and as violative of the federal Clean Water Act, 33 U.S.C. §§ 1251 to 1387, because the Permit’s terms did not meet Ocean Discharge Criteria (ODC) requirements. See footnote 1 As later summarized by the DEP Commissioner in his order denying COA an administrative hearing, COA alleged that: (1) the DEP made an insufficient effort to provide the public with documentary information that would allow for adequate public review of the proposed Permit; (2) the materials contained a numerical discrepancy between the water volumes that were treated and discharged by the Facility; (3) the Permit failed to establish numerical effluent limitations for enterococci; See footnote 2 (4) the DEP did not substantiate its finding of “no unreasonable degradation” under the federal ODC; (5) additional permit requirements should have been established to ensure that the ocean ecosystem was not degraded by the discharge; and (6) coordination between the DEP and the National Marine Fisheries Service, as contemplated by the Sustainable Fisheries Act of 1996, See footnote 3 had not occurred.
After considering the public comments received, the DEP determined to renew Asbury Park’s Permit. The Permit issued in final form on May 30, 2002. In a separate document responding to the public comments received, the DEP explained its determination not to alter the approved version of the Permit as a result of specific criticisms, including COA’s.
COA made a timely request for an adjudicatory hearing under N.J.S.A. 58:10A-7e and, shortly thereafter, supplemented the substance of its hearing request. Approximately sixteen months after receipt of that request, the Commissioner of the DEP issued an order denying the request for an adjudicatory hearing. Cf. N.J.S.A. 58:10A-7e (requiring DEP to decide third-party hearing request within thirty days of demand for hearing). The Commissioner’s order concluded that because COA failed “to demonstrate the existence of a significant issue of law or fact that is likely to [a]ffect the permit decision,” it had not met the statutory requirements for party status and, therefore, COA could not compel an administrative hearing. See N.J.S.A. 58:10A-7e(3). The Commissioner noted that the issues forming the basis for COA’s hearing request were identical to those raised in its public comments. He determined that because those issues had been considered and rejected by the DEP during the public comment process, the same contentions were unlikely to affect the permit decision rendered.
COA appealed and sought from the Appellate Division an order transferring the matter to the Office of Administrative Law (OAL) either for an adjudicatory hearing on the substance of COA’s issues, or to have an administrative law judge (ALJ) assigned to make the threshold determination whether COA had met the requirements for entitlement to a hearing. See N.J.S.A. 58:10A-7e (authorizing Commissioner to allow ALJ to determine whether person other than permittee should be found to be “a party to the action”). The panel rejected both applications by COA and concluded that the Commissioner’s denial of the hearing request was not arbitrary or capricious. Because COA had relied on its previously submitted comments as justification for its right to a hearing, and the DEP had “exhaustively analyzed and rejected” those same arguments before, the Appellate Division found it reasonable that COA’s resubmission of the comments was not regarded as likely to result in a different permitting decision. In addition, the panel substantively reviewed COA’s bases for requesting a hearing on the Asbury Park Permit and concluded that none required alteration of DEP’s permitting decision. We thus turn to the standard for reviewing the denial of a third party’s request for a hearing on a NJPDES permit.
A.
The New Jersey Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -24, “prescribes the procedure to be followed in the event an administrative hearing is otherwise required by statutory law or constitutional mandate.” In re Application of Modern Indus. Waste Serv., Inc., 153 N.J. Super. 232, 237 (App. Div. 1977); see also Cunningham v. Dep’t of Civil Serv., 69 N.J. 13 (1975) (recognizing APA hearing right also based on administrative fairness when requestor demonstrates specialized property interest about which contested adjudicative factual issues are in dispute). The APA and its implementing regulations afford enhanced notice and hearing procedures to “contested case” litigants. See N.J.S.A. 52:14B-9, and -10; see also N.J.A.C. 1:1-1.1 to -20.3 (providing uniform rules of procedure for conduct of contested case proceedings).
That said, although the APA establishes the process for a “contested case” proceeding, it does not confer the right to such a hearing, except in the sole instance recognized in N.J.S.A. 52:14B-11 (governing license revocations and renewals). See In re License of Fanelli, 174 N.J. 165, 172-73 (2002) (discussing APA hearing right for license revocation); see also 37 New Jersey Practice, Administrative Law and Practice § 4.6 (Lefelt, et al.) (2005). As limited by its definition, the term “contested case” pertains only to those administrative proceedings
in which the legal rights, duties, obligations, privileges, benefits or other legal relations of [the] specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing.
Thus, for example, a permittee under the WPCA is statutorily entitled to a contested case proceeding to challenge the determination “to grant, deny, modify, suspend, or revoke a [NJPDES] permit.” N.J.S.A. 58:10A-7f. See generally N.J.S.A. 52:14B-3.1 (acknowledging that generally “[p]ersons who . . . are directly affected by a permitting decision have constitutional and statutory rights and remedies”).
A hearing right also may exist for a non-applicant to a permit if that third party can demonstrate a particularized property interest of constitutional significance that is directly affected by an agency’s permitting decision. See N.J.S.A. 52:14B-3.1. In the companion decision to this matter, we considered a third party’s constitutionally based claim to entitlement to an administrative hearing in respect of a wetlands permit issued to an adjacent property owner. In re Authorization for Freshwater Wetlands Statewide Gen. Permits, ___ N.J. ___ (2005). Implicit in that decision is the recognition that, in this State as well as at the federal level, third parties generally are not able to meet the stringent requirements for constitutional standing in respect of an adjudicatory hearing. See generally Kevin A. Coyle, Standing of Third Parties to Challenge Administrative Agency Actions, 76 Cal. L. Rev. 1061, 1096 (1988).
In this State there has been legislative recognition of the benefits derived from a rigorous review standard when inquiring into the existence of a particularized property interest that generates a third-party hearing right. See N.J.S.A. 52:14B-3.1 (citing disruptive effect from “chaotic unpredictability and instability . . . to New Jersey’s business climate” caused by allowing third-party challenges to permitting decisions by those “who have no particularized property interests or who are not directly affected by a permitting decision”). Accordingly, state agencies are prohibited from granting third-party hearing rights through promulgation of a regulation unless a hearing right exists as a matter of federal law or state statute. Ibid.
This matter involves one of those few instances when the Legislature has expanded the class of persons to whom there may be granted a right to contest an agency’s permitting decision, notwithstanding the lack of a particularized property interest that is affected. That third-party hearing right is based solely on a statute and its prerequisites, and is unsupported by any property-right justification.
B.
In 1990, the WPCA was amended to expand party status to challenge a discharge permit issued by the DEP. L. 1190, c. 28, § 4 (amending N.J.S.A. 58:10A-7). The amendment’s stated purpose was to “strengthen[] the enforcement of the State’s water pollution control and prevention program” through a variety of mechanisms, including “providing for enhanced citizen participation in water pollution prevention and enforcement activities.” Senate Revenue, Finance and Appropriations Committee, Statement to Senate Bill No. 2188, at 1 (Apr. 26, 1990). The statute, as amended, declared that henceforth a decision by the DEP to grant a discharge permit would constitute a “contested case” under the APA and that, in addition to the permittee, any person considered a “party” to that administrative action “shall have the opportunity to contest the determination in an administrative hearing.” N.J.S.A. 58:10A-7d. The hearing right added by amendment dispensed with any requirement that a challenger demonstrate a particularized property right that would be directly affected by a permit’s issuance and, instead, conferred “party” status when the following criteria were met:
(1) the person’s objections to the action . . . were raised . . . in [a public] hearing held pursuant to [N.J.S.A. 58:10A-9] or, if no hearing was held, the objections were raised in a written submission;
(2) the person demonstrates the existence of a significant issue of law or
fact;
(3) the person shows that the significant issue of law or fact is
likely to affect the permit determination;
(4) the person can show an interest, including an environmental, aesthetic, or recreational
interest, which is or may be affected by the permit decision and that
the interest fairly can be traced to the challenged action and is likely
to be redressed by a decision favorable to that person;
(5) the person submits the following information with the request to be considered
a party to the action:
(a) a statement of each legal or factual question alleged to be
at issue and its relevance to the permit decision, together with a designation
of the specific factual areas to be adjudicated and the hearing time estimated
to be necessary for adjudication;
(b) information supporting the request [for a hearing] . . . ;
* * * *
(g) specific references to the contested permit conditions, as well as suggested
revised or alternative permit conditions, including permit denials, which, in the judgment of
the requester, would be required to implement the purposes of [the WPCA]; and
(h) in the case of application of control or treatment technologies identified
in the statement of basis or fact sheet, identification of the basis for
the objection, and the alternative technologies or combination of technologies which the requester
believes are necessary to meet the requirements of [the WPCA].
[N.J.S.A. 58:10A-7e; see also N.J.A.C. 7:14A-17.3 (tracking statutory requirements generally and adding that
issues not raised during public comment are waived).]
Thus, to obtain a hearing right as a “party” under the WPCA, the
requestor procedurally must have raised its objections to the DEP’s permitting decision during
the applicable public comment opportunity and, substantively, must present a significant issue of
law or fact in the hearing request. N.J.S.A. 58:10A-7e(1) and (2). The significant
issue of law or fact must be one that is “likely to affect
the permit determination.” N.J.S.A. 58:10A-7e(3).
The latter provisions, added by amendment during legislative passage, replaced earlier language in
the bill that had allowed a hearing right to any person who raised
objections to the permit action during the opportunity for public comment so long
as the objections “relate to a significant issue of law or fact that
is likely to have a bearing on the determination.” (emphasis added). See Senate
Revenue, Finance and Appropriations Committee, Amendments to Senate Bill No. 2188 (rejecting “bearing
on” language and instead inserting standard of “likely to affect the permit determination”
(emphasis added), as well as other specific criteria that requestor must demonstrate); see
also Senate Revenue, Finance and Appropriations Committee, Statement to Senate Bill No. 2188,
at 7 (noting addition of “[s]pecific criteria . . . which third parties
requesting to appeal a permit decision by DEP must meet before an appeal
hearing is granted”). Other criteria require delineation of permit conditions that the hearing
requestor contends must be altered or revised, along with suggested revisions, in order
to implement the purposes of the WPCA. N.J.S.A. 58:10A-7e(5)(g). The same specific delineation
requirement pertains in respect of control or treatment technologies that the hearing requestor
contends must be replaced or augmented. N.J.S.A. 58:10A-7e(5)(h).
The specificity required in respect of alternative permit conditions and for control or
treatment conditions, coupled with the requirement that the issue of fact or law
must be likely to alter the permit determination, evince an overall effort to
narrow the original bill in respect of the precise bases on which an
adjudicative hearing will be allowed. The WPCA amendment ultimately enacted appears congruent with
prior decisions addressing when a trial-type adjudicatory hearing is appropriate in administrative law
settings, i.e. when there is a triable dispute involving adjudicative facts. See generally
High Horizons Dev. Co. v. Dep’t of Transp.,
120 N.J. 40, 49-53 (1990)
(tracking evolution of decisions addressing administrative hearing right in respect of administrative fairness
and disputed adjudicatory facts). In High Horizons we said that
the question of whether an adjudicatory hearing is required in any particular administrative
context will often hinge on whether courts consider the facts in question to
be adjudicatory in nature. Adjudicative facts have been defined by Professor Davis as
“facts pertaining to the parties and their businesses and activities. Adjudicative facts usually
answer the questions of who did what, where, when, how, why, with what
motive or intent; adjudicative facts are roughly the kind of facts that go
to a jury in a jury case.” In contrast, legislative facts, the determination
of which will not normally require a trial-type hearing, “do not usually concern
the immediate parties, but are the general facts which help the tribunal decide
questions of law and policy and discretion.[”] As Professor Davis has explained,
[a]n agency should engage in formal factfinding when, regardless of the role it
is playing, the need for factual accuracy outweighs other considerations and trial-type procedures
will effectively decrease uncertainty.
[High Horizons, supra, 120 N.J. at 49-50 (quoting Friedman, Judicial Review Under the
Superfund Amendments, 14 Colum. J. Envtl. L. 187, 201 (1989) (quoting 2 K.
Davis, Administrative Law Treatise § 12:3, at 413 (2d ed. 1979))). See also Cunningham,
supra, 69 N.J. at 22.]
The WPCA paradigm for when party status must be granted leads us
to the conclusion that the statute’s hearing requirement is triggered when there is
a need for a quasi-judicial adjudicative hearing. Such hearings are appropriate when there
exist adjudicative facts in dispute. “‘The law clearly is, at a most elementary
level, that because a trial is a process for taking evidence, subject to
cross-examination, and because taking evidence is not appropriate except on disputed facts, trial
procedure is not required on issues of law, policy or discretion.’” High Horizons,
supra, 120 N.J. at 50 (quoting Davis, supra, § 12:2, at 409-10). Thus, although
the WPCA hearing right is conferred by operation of statute and is not
based on generalized administrative fairness considerations, nevertheless, the same basis for the grant
of an adjudicative hearing controls. There must exist a dispute about adjudicative facts
that affects the permit decision. Stated otherwise, even “‘[due] process [does not] require[]
a trial on non-factual issues. What is needed on such issues is argument,
written or oral, not evidence and not trial procedure.’” High Horizons, supra, 120
N.J. at 51 (quoting Davis, supra, § 12:1, at 406). Under the WPCA, a
third party’s arguments about policy or discretion are entitled to reasoned consideration during
the public comment period. On the other hand, to compel an administrative hearing
under the WPCA, a proposed “party” must demonstrate the existence of a dispute
about adjudicatory facts or about the application of “the law to facts as
found” based on evidence presented in a trial-like proceeding. See High Horizons, supra,
120 N.J. at 50 (quoting Cunningham, supra, 69 N.J. at 21.). Disputes over
policy or over the creation of a new discretionary regulatory standard are for
the agency head to determine and do not compel the holding of a
contested-case proceeding.
In sum, the WPCA expanded the class of persons entitled to an administrative
hearing. It is no longer necessary to articulate a particularized property interest that
is affected by the agency’s action in order to receive a hearing on
a permitting determination. Nonetheless, to qualify for “party” status under the WPCA, one
must demonstrate a significant issue of fact or law for which an adjudicative
hearing is required because there is a triable dispute concerning adjudicative facts. See
Cunningham, supra, 69 N.J. at 22-23; see also N.J.A.C. 7:14A-17.4(b) (“The [DEP] shall
deny a request for an adjudicatory hearing if . . . [t]he request
challenges duly promulgated regulations and not the [DEP’s] application of the regulations.”). The
specific criteria set forth in N.J.S.A. 58:10A-7e demonstrate a desire to have a
focused disagreement between the DEP and the permit challenger seeking party status that
is amenable to resolution through an adjudicatory hearing. The requirement of a dispute
involving adjudicative facts keeps the resultant administrative hearing limited to issues resolvable by
the application of evidential and procedural rules. Because a policy disagreement is not
conducive to resolution in the same manner, such disagreements do not require that
the DEP provide an administrative hearing.
In its hearing request COA relied on the substance of its previously submitted comments on the proposed Permit. The DEP response to that request relied, in turn, on the substance of the agency’s answers to those public comments. At the outset, the nature of the request and corresponding response bears comment.
The requirement that agencies set forth in detail the reasons for an agency determination is to permit a reviewing court to evaluate a particular outcome to determine whether it is arbitrary or unreasonable and, where applicable, supported or not by the evidence. In re Issuance of a Permit by Dep’t of Envtl. Prot. to Ciba-Geigy Corp., supra, 120 N.J. at 172-73. Conclusory resolutions impede the judicial function. See Medici v. BPR Co., 107 N.J. 1, 23 (1987). Here, when the hearing requestor did no more than to refer back to its earlier written submissions to the DEP, we can understand why the DEP may have believed that a similar reference to its earlier responsive communication was sufficient. However, when a separate inquiry is raised about whether COA’s claimed deficiencies could affect the permitting decision, the reference back to DEP’s earlier response does not explain adequately why those claims need not be referred to an adjudicatory hearing.
Given the amount of time that has elapsed since issuance of the Permit, a remand for preparation of a more suitable hearing denial document would be wasteful of resources. We can perform our review function in this instance and we are convinced, upon review of the comments and responses, that COA’s reasons for requesting party status do not merit the grant of an adjudicatory hearing. In the future, however, the agency is on notice that it must prepare an integrated hearing denial decision. That document must explain the reasons why the DEP Commissioner has concluded that a third party’s hearing request does not meet the statutory standard for a hearing in respect of the specific grounds raised. Reliance on DEP’s earlier consideration and rejection of those grounds is insufficient. When a third-party hearing request is based on objections raised during the public comment period, as required here, see N.J.S.A. 58:10A-7e(1) and N.J.A.C. 7:14A-17.3, the denial document must present the basis for the Commissioner’s decision that the requestor has not presented a significant issue of fact or law that is likely to alter the permitting decision. See N.J.S.A. 58:10A-7e. A conclusory response neither informs the third party adequately nor provides a proper basis for judicial review. See footnote 4
In this instance, based on our review of the DEP’s responses to COA’s comments, it is clear that there are no adjudicative facts in issue. Two comments concerned only COA’s disagreement with how the DEP made available documents concerning the Permit. One alleged factual discrepancy in the documents in respect of water volume treated and discharged at the Facility was immaterial to the ultimate Permit determination. See footnote 5 Our review of the other objections leads to the conclusion that they generally may be categorized as policy disputes. Many are based on COA’s disagreement with DEP’s determination not to set a discharge limit for enterococci concentrations. See footnote 6 That determination by the DEP is not violative of any legal standard, however, and is within DEP’s policy authority. COA’s other criticisms similarly fail the test for requiring an administrative hearing. None are rooted in factual error or deficiency based on an identified legal standard that would compel alteration of the Permit determination. See footnote 7 In sum, we conclude that the DEP Commissioner was neither arbitrary nor unreasonable in rejecting COA’s request for party status and, thus, denying COA an administrative hearing on its objections to the Permit.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-116 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
IN RE NJPDES PERMIT NO.
NJ0025241 ISSUES TO ASBURY
PARK CITY
DECIDED January 11, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
ODC guidelines are imposed through the Clean Water Act and limit the
discharge of pollutants into navigable waters. In re Issuance of a Permit by
Dep’t of Envtl. Prot. to Ciba-Geigy Corp.,
120 N.J. 164, 174 (1990). ODC
requirements must be satisfied for a NJPDES permit to issue. Id. at 175.
Footnote: 2
Enterococci are pathogenic bacteria. See N.J.A.C. 7:14A-6.5(b)2ii. Pathogenic means disease-causing. N.J.A.C. 7:14A-1.2.
Footnote: 3
Pub. L. No. 104-297,
110 Stat. 3559.
Footnote: 4
Whether a third party has met the statutory definition for a hearing is,
as explained herein, a separate inquiry to be conducted by the Commissioner.
Footnote: 5
The draft permit renewal notice stated that the average flow at the
plant is 1.6 MGD, whereas in the DEP’s ODC “Decision Document” the current
volume discharged is represented to be 3.3 MGD. Whether the actual plant flow
was 1.
6 MGD or 3.3 MGD, the Asbury Park facility had a permitted
monthly average flow of 4.4 MGD and, so, either flow volume was within
permit limits. That alleged factual dispute is incapable of meeting the standard for
requiring an adjudicatory hearing.
Footnote: 6
See N.J.A.C. 7:14A-6.5(b)2ii (“Discharge permits shall contain a monitoring-only requirement for enterococci
organisms, unless [DEP] determines that it is appropriate to require enterococci effluent limitations
and publishes a public notice in the New Jersey Register with supporting reasons
to this effect.”).
Footnote: 7
For example, none of COA’s criticisms about the ODC Decision Document were
based on a failure to comply with a legally required standard. Rather, the
criticisms were more in the nature of disagreements over policy determinations that were
within DEP’s regulatory discretion, such as DEP’s policy of calculating effluent limits using
a mixing zone, see N.J.A.C. 7:14A-2.12 (approving use of mixing zone studies when
determining permit limits), and 40 C.F.R. § 125.123 (endorsing use of mixing zones); DEP’s
policy of relying on fecal coliform concentrations in its programs of waste water
discharge monitoring; and DEP’s policy of not requiring sediment monitoring in the absence
of any federal or state establishment of marine sediment criteria. Similarly, although COA
wanted DEP to take certain additional actions, such as development of water quality
based effluent limits for toxins and nutrients, it could point to no federal
or state requirement that was not satisfied. See N.J.A.C. 7:14A-13.3 (describing limited circumstances
in which water quality based effluent limits must be established). COA’s urging of
more frequent, monthly monitoring for certain parameters also was rejected as not legally
compelled.