IN THE MATTER OF CHALLENGE OF DELAWARE RIVERKEEPER NETWORK, ETC. (DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0709-19
IN THE MATTER OF
CHALLENGE OF DELAWARE
RIVERKEEPER NETWORK and
MAYA VAN ROSSUM-THE
DELAWARE RIVERKEEPER
TO DELAWARE RIVER
PARTNERS, LLC WATERFRONT
DEVELOPMENT INDIVIDUAL
PERMIT NO. 0807-16-0001.2
WFD 19001.
_____________________________
Submitted May 10, 2021 – Decided June 23, 2021
Before Judges Messano, Hoffman and Suter.
On appeal from the Issuance of a Permit by the
Department of Environmental Protection, Division of
Land Use Regulations, Dated September 5, 2019.
Kacy C. Manahan and Curtin & Heffner, LLP,
attorneys for appellants Delaware Riverkeeper
Network and Maya Van Rossum-The Delaware
Riverkeeper (Kacy C. Manahan, Mark L. Freed and
Lauren M. Williams, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent Department of Environmental Protection
(Melissa H. Raksa, Assistant Attorney General, of
counsel; Katherine M. Hunt, Deputy Attorney General,
on the brief).
Gibbons PC, and Manko, Gold, Katcher & Fox, LLP,
attorneys for respondent Delaware River Partners LLC
(Paul Hauge and Kathleen B. Campbell, on the brief).
PER CURIAM
This appeal concerns a challenge by the Delaware Riverkeeper Network 1
and Maya van Rossum (appellants) to the issuance of a Waterfront Development
Individual Permit and Water Quality Certificate (the Permit) to Delaware River
Partners, LLC (DRP) by the Department of Environmental Protection (the DEP).
The Permit authorizes DRP to construct a second dock (Dock 2) at the
Gibbstown Logistics Center (GLC), a facility it is building along the Delaware
River.
Appellants contend the DEP acted arbitrarily, capriciously, and
unreasonably in issuing the Permit allowing Dock 2 to be built, arguing the DEP
1
According to appellants, the Delaware Riverkeeper Network is a non-profit
organization established in 1988 with a goal to "protect and restore the Delaware
River, its tributaries and habitats." To that end, it "organizes and implements
streambank restorations, a volunteer monitoring program, educational programs,
environmental advocacy initiatives, recreational activities, and litigation"
related to the Delaware River. See also Delaware Riverkeeper Network,
https://www.delawareriverkeeper.org/ (last viewed May 20, 2021).
A-0709-19
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wrongfully: 1) did not evaluate Dock 2 as an "energy facility" under N.J.A.C.
7:7-15.4, leading it to fail to consider impacts its construction and operation may
have on endangered sturgeon and submerged aquatic vegetation (SAV); 2) did
not require DRP to produce sufficient information about potential impacts to
water quality resulting from dredging before issuing the Permit; and 3) did not
require DRP to obtain an Industrial Stormwater Permit under N.J.A.C. 7:7-16.6.
After considering each argument, we are satisfied the DEP did not act arbitrarily,
capriciously, or unreasonably in issuing the subject Permit. We therefore affirm.
I.
In 2016, DRP purchased part of a property situated on the Delaware River
previously used by E.I. du Pont de Nemours and Company (DuPont), an
industrial site known as the DuPont Repauno Works. The site, located near
residential areas in Gibbstown, hosted various DuPont operations, including
explosives manufacturing, industrial diamond manufacturing, and storage and
shipment of ammonia. From 1951 to 1986, Atlantic City Electric also operated
a power plant on the property and used a pier for the transfer of coal. Chemours
Co., LLC, a successor to DuPont, continues to engage in remediation of
contamination of the upland areas of the site, under supervision of the DEP.
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Since industrial operations on the site ceased decades ago, much of the
site has naturalized. In 2003, it was designated an area in need of redevelopment
pursuant to N.J.S.A. 40A:12A-1. After purchasing approximately 371 acres of
the 1600-acre area, DRP proposed building the GLC, a multi-purpose wharf and
one adjacent ship berth intended to replace structures constructed by DuPont in
the early 1900s. According to DRP, the goal of the GLC project is to "revitalize
a previously vacant, contaminated waterfront property, while making use of the
site's existing rail connections and proximity to major highways, as well as its
location on a portion of the Delaware River that is actively used for marine
commerce."
DRP applied for a waterfront development permit and related land use
permits to allow it to construct such a "multi-use deep-water port." The
application stated that DRP intended the GLC to receive and load cargo from
and to ships, including automobiles and other "roll-on/roll-off" cargo, and bulk
liquid products including "liquid gases and energy liquid products ." The DEP
determined that the construction of the GLC satisfied all applicable siting
conditions and environmental standards under the Energy Facility Use rule,
N.J.A.C. 7:7-15.4, and the Stormwater Management rules, N.J.A.C. 7:8-1.1 to -
6.3.
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On April 10, and June 30, 2017, the DEP issued the requested permits,
which authorized DRP to dredge 460,000 cubic yards of sediment within a
twenty-nine-acre area of the Delaware River, to accommodate a 750-foot-long
berth for large vessels and provide access to the structure from the river's
navigational channel. This construction is referred to as the "Dock 1 and Marine
Terminal" project (Dock 1/GLC).
In 2018, DRP applied for a modification to the Dock 1/GLC permits to
allow for changes to the proposed footprint and location of the marine terminal,
which would now include "a bulk liquid storage and handling facility for the
transfer of liquified natural gas and other materials." In November 2018, the
DEP authorized the modification, conditioned upon DRP's compliance with all
Toxic Catastrophe Prevention Act Program rules under N.J.A.C. 7:31-1.1 to -
11.5.
According to the DEP, no challenges or appeals were filed by any parties,
including appellants, after the 2017 Dock 1/GLC permits were issued or the
2018 modification was approved. By the time the parties filed their briefs in
this appeal, construction of Dock 1 was "substantially complete," and
construction of the upland portion of the GLC was underway.
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On March 14, 2019, DRP submitted its application for the Permit,
requesting authorization to construct a second dock at the GLC that would
accommodate two vessels end to end with berths "dedicated to liquid bulk
cargoes." Dock 2 was intended to allow such products "to be transloaded to
vessels more efficiently and effectively" than by using the single berth at Dock
1. It would be located downriver of Dock 1, in the area of the now-dilapidated
Atlantic City Electric pier. While Dock 1 is fully connected to land, Dock 2
would be constructed over the water of the Delaware River, over 600 feet from
the shore. Access to land would be provided by a thirty-five-foot-wide trestle
with a fifty-foot-wide supporting bulkhead at the point where it reaches the
shore. Dock 2 would consist of two loading platforms, breasting and mooring
dolphins,2 and walkways providing dockworker access. The dock would not
include any storage tanks for liquid natural gas or any other such energy
products or liquid cargoes.
Notice of the application for Dock 2 was sent to municipal and county
officials in the relevant area, but the DEP failed to publish notice of the
2
A dolphin is a collection of piles driven into the riverbed and bound together
so as to form a fixed structure to which barges and other vessels can be
moored. See Norfolk S. Ry. C o. v. Moran Towing Corp., 718 F. Supp. 2d 658,
661 (E.D. Va. 2010).
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application in the DEP Bulletin as required by N.J.A.C. 7:7-26.1. On March 20,
2019, the DEP deemed the application to be administratively complete pursuant
to N.J.A.C. 7:7-26.2.
On May 20, 2019, the DEP issued the Permit to DRP; however, upon
realizing its failure to provide the Bulletin notice, on June 5, 2019, the DEP
suspended the Permit, pursuant to N.J.A.C. 7:7-27.7. The same day, the DEP
published the required notice, which provided for a fifteen-day public comment
period. Appellants and others sent comments opposing Dock 2. DRP provided
the DEP with responses to the comments by letter dated July 15, 2019. The DEP
reinstated the Permit on September 5, 2019; thereafter, it published the letter of
reinstatement in the DEP Bulletin on September 18, 2019, along with detailed
responses to the comments it had received.
The Permit authorized construction of Dock 2, a structure totaling 139,127
square feet in area, and the dredging of approximately 665,000 cubic yards of
sediment to provide access to vessels from the river's navigation channel.
However, it specified that DRP must first obtain a Tidelands instrument from
DEP's Bureau of Tidelands Management and authorization for the work from
the United States Army Corps of Engineers. The Permit also contained
conditions intended to protect water quality, endangered fish, and SAV beds.
A-0709-19
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When it begins operating, the GLC will receive liquified natural gas
(LNG) by truck and rail from a facility in Pennsylvania, and will load it onto
vessels at its two docks. DRP has received a permit authorizing the transport of
LNG in rail cars from the United States Department of Transportation Pipeline
and Hazardous Materials Safety Administration. On February 25, 2020, the
Army Corps of Engineers issued DRP a permit for Dock 2 under the Federal
Clean Water Act, 33 U.S.C. § 1344, and the Rivers and Harbors Act, 33 U.S.C.
§ 403.
On October 18, 2019, appellants filed their notice of appeal challenging
the DEP's issuance of the Permit for Dock 2.
II.
On appeal, the judicial capacity to review agency actions is "limited."
Pub. Serv. Elec. and Gas Co. v. N.J. Dep't of Env't Prot., 101 N.J. 95, 103 (1985).
An agency's "final quasi-judicial decision" should be affirmed unless there is a
"'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks
fair support in the record." Circus Liquors, Inc. v. Governing Body of
Middletown Twp., 199 N.J. 1, 9 (2009) (quoting In re Herrmann, 192 N.J. 19,
27-28 (2007)). The reviewing court is restricted to three inquiries:
(1) whether the agency action violates the enabling act's
express or implied legislative policies; (2) whether
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there is substantial evidence in the record to support the
findings upon which the agency based [its] application
of legislative policies; and (3) whether, in applying the
legislative policies to the facts, the agency clearly erred
by reaching a conclusion that could not reasonably have
been made upon a showing of the relevant factors.
[Pub. Serv. Elec. and Gas, 101 N.J. at 103.]
"The interest of justice . . . authorizes a reviewing court to abandon its
traditional deference . . . when an agency's decision is manifestly mistaken."
Outland v. Bd. of Trs. of the Tchrs' Pension and Annuity Fund, 326 N.J. Super.
395, 400 (App. Div. 1999). Further, a court is "not bound by an agency's
interpretation of a statute, if it is contrary to [the] legislative intent and plain
meaning of the statute." Ibid.Nevertheless, "[e]ven if a court may have reached a different result had it
been the initial decision maker, it may not simply 'substitute its own judgment
for the agency's.'" Circus Liquors, Inc., 199 N.J. at 10 (quoting In re Carter, 191
N.J. 474, 483 (2007)). The courts' "strong inclination" is to "defer to agency
action that is consistent with the legislative grant of power." Lower Main St.
Assocs. v. N.J. Hous. and Mortg. Fin. Agency, 114 N.J. 226, 236 (1989). This
presumption that an agency's decision is reasonable "is even stronger when the
agency has delegated discretion to determine the technical and special
procedures to accomplish its task." In re Application of Holy Name Hosp. for a
A-0709-19
9
Certificate of Need, 301 N.J. Super. 282, 295 (App. Div. 1997). The
Legislature's delegation of power to an agency is "construed liberally when the
agency is concerned with the protection of the health and welfare of the public."
Barone v. Dep't of Human Servs., 210 N.J. Super 276, 285 (App. Div. 1986).
The courts also typically defer to an administrative agency's "technical
expertise, its superior knowledge of its subject matter area, and its fact -finding
role," Messick v. Bd. of Rev., 420 N.J. Super 321, 325 (App. Div. 2011),
particularly concerning "technical matters which lie within its special
competence." Application of Boardwalk Regency Corp. for a Casino License,
180 N.J. Super. 324, 333 (App. Div. 1981).
In 1973, the Legislature enacted the Coastal Area Facility Review Act
(CAFRA), N.J.S.A. 13:19-1 to -21, "to protect the unique and fragile coastal
zones of the State." In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358,
364 (1983). CAFRA mandates that any proposed development within a "coastal
area" that meets certain construction and development thresholds must obtain a
permit or permits from the DEP before commencing construction, unless it is
otherwise expressly exempted. In re Protest of Coastal Permit Program Rules,
354 N.J. Super. 293, 310 (App. Div. 2002) (citing N.J.S.A. 13:19-5, -5.2, and -
A-0709-19
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5.3). The Legislature also delegated the DEP the power to promulgate
regulations "to effectuate the purposes of" CAFRA. N.J.S.A. 13:19-17(a).
The DEP executes its authority under CAFRA through the Coastal Zone
Management (CZM) rules at N.J.A.C. 7:7-1.1 to -29.10. These regulations
contain "the procedures for reviewing coastal permit applications and enforcing
violations," and "the substantive standards for determining development
acceptability and the environmental impact of projects for which coastal permits
are submitted." In re Protest of Coastal Permit Program Rules, 354 N.J. Super.
at 312. The rules are also used in the issuance of water quality certificates for
projects subject to the Federal Clean Water Act, 33 U.S.C. § 1341.
CZM rules "are founded on . . . broad coastal goals," including: protecting
"healthy coastal ecosystems," "coastal open space," and "safe, healthy and well -
planned coastal communities and regions"; promoting "effective management of
ocean and estuarine resources"; maintaining "meaningful public access to and
use of tidal waterways and their shores"; "sustain[ing] and revitaliz[ing] water -
dependent uses" such as ports and other waterfront sites while "managin[ing]
dredging in an environmentally sound manner" and "promot[ing]
environmentally sound and economically feasible dredged material management
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practices"; and coordinating coastal decision-making, planning, research,
education, and outreach. N.J.A.C. 7:7-1.1(c).
N.J.A.C. 7:7-1.1(d) acknowledges that when developing the CZM rules,
the DEP needed to strike "balances . . . among various conflicting, competing,
and contradictory local, State, and national interests in coastal resources and in
uses of coastal locations." As such, the rules explicitly state that the DEP "does
not expect each proposed use of coastal resources to involve all location rules,
use rules, and resource rules." N.J.A.C. 7:7-1.1(e). Instead, decision making
regarding a given permit application "involves examining, weighing, and
evaluating complex interests using the framework provided by" the rules. Ibid.A. Application of Relevant Regulations When Evaluating Dock 2
Appellants argue that the DEP wrongfully failed to evaluate Dock 2 as an
"energy facility" under N.J.A.C. 7:7-15.4. They assert that Dock 2, independent
of the rest of the GLC, meets the definition of such a facility, and that the DEP
therefore should have analyzed it as such. More specifically, appellants argue
that even if Dock 2 "does not meet the word-for-word definition of an LNG
facility" because its operations will not involve the delivery of LNG through a
pipeline, the DEP "should have liberally construed its regulations" and evaluated
it as such in the interest of "the public health, safety, and welfare." They also
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assert that the DEP wrongfully failed to consider siting standards for a "tanker
terminal" under N.J.A.C. 7:7-15.4(q), asserting that this regulation
"discourages" such facilities except at the Port of New York and New Jersey and
the Port of Camden and Philadelphia. Appellants further contend the DEP failed
to consider whether the dredging, construction, and boat traffic associated with
Dock 2 would have an adverse impact on endangered sturgeon or on SAV beds.
Addressing appellants' arguments requires the interpretation of several
provisions of CZM rules. Courts interpret regulations in the same way as
statutes. In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542
(2016). The "'paramount goal' is to determine the drafter's intent," which is
generally found in the regulation's "actual language." Ibid. (quoting U.S. Bank,
N.A. v. Hough, 210 N.J. 187, 199 (2012)). Generally, a regulation's words
should be given "their ordinary and commonsense meaning." In re Election Law
Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 263 (2010).
A court should view a regulation's words in the context of the entire
regulatory scheme of which it is a part. Id. at 532-33. It must make every effort
"to avoid rendering any part of the [regulation] superfluous." State in Interest
of K.O., 217 N.J. 83, 91 (2014). The court must "presume that every word . . .
has meaning and is not mere surplusage," and "must give those words effect and
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not render them a nullity." In re Attorney General's "Directive on Exit Polling:
Media & Non-Partisan Pub. Interest Grps.", 200 N.J. 283, 297-98 (2009).
Further, a court must not "rearrange the wording of the regulation, if it is
otherwise unambiguous, or engage in conjecture that will subvert its plain
meaning." U.S. Bank, 210 N.J. at 199. It "cannot insert qualifications into a
statute or regulation that are not evident" from that language. Id. at 202.
While a court is not bound by the agency's interpretation of a statute or its
determination of strictly legal issues, id. at 200, courts do defer to an agency's
interpretation of a regulation "within the sphere of its authority" unless the
interpretation is "plainly unreasonable." In re Election Law Enforcement
Comm'n, 201 N.J. at 262. This is because "a state agency brings experience and
specialized knowledge to its task of administering and regulating a legi slative
enactment within its field of expertise." Ibid. In general, it is assumed that "the
agency that drafted and promulgated the rule should know the meaning of that
rule." In re Gen. Permit No. 16, 379 N.J. Super. at 341-42 (App. Div. 2003).
However, an agency may not use its power to interpret its own regulations as a
means of amending them or adopting new ones without following proper
rulemaking procedures under the Administrative Procedure Act (APA), N.J.S.A.
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52:14B-4. Venuti v. Cape May Cnty. Constr. Bd. of Appeals, 231 N.J. Super
546, 554 (App. Div. 1989).
Energy Facility Definition Generally
In its comment protesting the Dock 2 permit, appellants argued that the
DEP should evaluate the project as an energy facility, as an "LNG facility," a
"tanker terminal," or both.
N.J.A.C. 7:7-15.4(a) states that the term "energy facility" includes
"facilities, plants or operations for the production, conversion, exploration,
development, distribution, extraction, processing, or storage of energy or fo ssil
fuels," as well as "onshore support bases and marine terminals." N.J.A.C. 7:7 -
15.4(b) and (c) set forth general standards regarding the siting of new energy
facilities, then subsections (d) through (s) state specific standards and siting
rules for sixteen types of facilities: outer Continental Shelf oil and gas
exploration and development; onshore support bases; platform fabrication yards
and module construction; repair and maintenance facilities; pipe coating yards;
pipelines and associated facilities; gas separation and dehydration facilities; gas
compressor stations; gas pigging facilities; gas processing plants; other gas
related facilities; oil refineries and petrochemical facilities; storage for crude
oil, gases, and other potentially hazardous liquid substances; tanker terminals;
A-0709-19
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electric generating stations; and LNG facilities. N.J.A.C. 7:7-15.4 does not
reference new docks added to existing facilities that have already been granted
permits under the requirements of the relevant subsection(s).
N.J.A.C. 7:7-9.11(a)(2) states that "[s]tandards for a docking facility or
concentration of docks for a single industrial or manufacturing facility are found
at N.J.A.C. 7:7-12.4." This regulation further states that "[d]ocks and piers for
cargo movements are encouraged." N.J.A.C. 7:7-9.11(e). N.J.A.C. 7:7-12.4(a)
defines "[d]ocks and piers for cargo and passenger movement" as "structures
supported on pilings driven into the bottom substrate or floating on the water
surface, used for loading and unloading passengers or cargo, including fluids,
connected to or associated with, a single industrial or manufacturing facility or
to commercial fishing facilities." N.J.A.C. 7:7-12.4(b) states that such docks
and piers are "conditionally acceptable" provided they meet certain width and
length standards, they "will not post a hazard to navigation," and "[t]he
associated use of the adjacent land meets all applicable rules of this chapter."
We conclude the DEP did not act arbitrarily, capriciously, or unreasonably
when it decided not to evaluate Dock 2 as an "energy facility" under N.J.A.C.
7:7-15.4. Dock 2 does not, in itself, appear to fit into any of the sixteen
categories set forth in that regulation. The dock consists solely of berths for
A-0709-19
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vessels and associated structures. It includes no storage tanks or other apparatus
for holding energy products, and none of the other activities discussed in
N.J.A.C. 7:7-15.4(d) through (s) will take place there. Further, the DEP already
evaluated the GLC using the appropriate standards for its type of energy facility.
Dock 2 more appropriately fits under N.J.A.C. 7:7-12.4, which explicitly
concerns docks used for loading and unloading cargo, including fluids, that are
connected to or associated with an industrial or manufacturing facility.
LNG Facility Analysis
Next, we address appellants' specific arguments that Dock 2 should have
been evaluated as an "LNG facility," that it is an improperly sited "tanker
terminal," and that the DEP did not consider potential harms to sturgeon and
SAV.
N.J.A.C. 7:7-15.4(s) states:
New marine terminals and associated facilities that
receive, store, and vaporize liquefied natural gas for
transmission by pipeline are discouraged in the coastal
zone unless a clear and precise justification for such
facilities exists in the national interest; the proposed
facility is located and constructed so as to neither
unduly endanger human life and property, nor
otherwise impair the public health, safety and welfare
. . . and such facilities comply with the [CZM] rules.
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When considering an application for a proposed LNG facility, the DEP "will
consider siting criteria including, but not limited to: (1) the risks inherent in
tankering LNG along New Jersey's waterways; (2) the risks inherent in
transferring LNG onshore; and (3) the compatibility of the facility with
surrounding land uses, population densities, and concentrations of commercial
or industrial activity." N.J.A.C. 7:7-15.4(s)(1)(ii).
Here, in its response to comments, the DEP stated that the GLC does not
fit the definition of an LNG facility under N.J.A.C. 7:7-15.4(s) because DRP
intends to load LNG from trucks and rail cars onto vessels; no pipelines are
involved. The DEP also stated that during the evaluation process for the Dock
1/GLC permit and its later modification, it analyzed the overall operation as an
energy facility with storage tanks for crude oil or other hazardous liquids.
We reject appellants' argument that the DEP was required to evaluate
Dock 2 as an LNG facility in its own right. The dock will not "store" or
"vaporize" LNG , and will not "receive" it "for transmission by pipeline." Thus,
under the plain language of N.J.A.C. 7:7-15.4(s), it does not constitute an "LNG
facility." We also find no merit in appellants' argument that despite the lack of
pipelines at the GLC, the DEP should have "liberally construed" N.J.A.C. 7:7-
15.4(s) to cover Dock 2. Such a reading of the regulation may well have run
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afoul of the prohibition against an agency "interpreting" a rule as a substitute
for amending it through the procedures laid out in the APA. Venuti, 231 N.J.
Super. at 554. Further, although this argument may have been better directed
against the GLC, the record demonstrates that notwithstanding the fact that the
GLC did not meet the definition of an "LNG facility" under the regulation, the
DEP did consider the hazards associated with the transloading of LNG at the
facility when issuing the Dock 1/GLC permit. We conclude the DEP did not act
arbitrarily, capriciously, or unreasonably by determining that Dock 2 did not
need to be evaluated as an LNG before issuing the Permit.
Tanker Terminal Location Analysis
N.J.A.C. 7:7-15.4(q) provides that "[n]ew or expanded tanker facilities are
acceptable only in existing ports and harbors where the required channel depths
exist to accommodate tankers." It further states that "multicompany use" of such
tanker terminals is "encouraged in the Port of New York and New Jersey and
the Port of Camden and Philadelphia," and that "[n]ew tanker terminals are
discouraged in areas" outside of those two named ports. Ibid. Additionally,
"[o]ffshore tanker terminals and deepwater ports are discouraged." Ibid.
"Discouraged" is defined in N.J.A.C. 7:7-1.5 to mean that "a proposed use
of coastal resources is likely to be rejected or denied as [DEP] has determined
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that such uses . . . should be deterred;" however, the DEP "may permit the use"
in cases where it "considers the proposed use to be in the public interest despite
its discouraged status." Ibid. The use may be conditioned upon the
implementation of "mitigating or compensating measures . . . so that there is a
net gain in quality and quantity of the coastal resource of concern." Ibid. For
example, in In re Stream Encroachment Permit No. 0200-04-0002.1 FHA, 402
N.J. Super. 587, 605 (App. Div. 2008), we affirmed the issuance of a permit by
the DEP despite the fact that the proposed waterway filling covered by the
permit was "discouraged" by N.J.A.C. 7:7-12.11(e)3 in the relevant area. We
reasoned that the DEP had "found the project to be in the public interest," and
noted that a "significant environmental mitigation program" had been proposed.
Ibid. Importantly, the court stated that the regulation "[did] not prohibit
development and filling, rather it is 'discouraged.'" Ibid.Here, the DEP stated in its response to comments that it considered the
tanker terminal location standards in N.J.A.C. 7:7-15.4(q) during the Dock
1/GLC permitting process. It explained that this provision was meant to
"concentrat[e] these types of industries in existing port areas, like the Delaware
3
The case cites to N.J.A.C. 7:7E-4.10. This provision was recodified as
N.J.A.C. 7:7-12.11, effective July 6, 2015. See 46 N.J.R. 1051(a), 47 N.J.R.
1392(a).
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River region, and locat[e] these types of industries at existing port facilities
which currently handle the storage of crude oil, gases and other hazardous
substances." Appellants contend that this response suggests that DEP
"erroneously believed" that N.J.A.C. 7:7-15.4(q) "applied to the entire Delaware
River," as opposed to specifically the two named ports.
We conclude that Dock 2, the project covered by the Permit, is not in itself
any type of "energy facility," including a tanker terminal; however, we
acknowledge this is a slightly closer issue. "Tanker terminal" is not defined in
detail in N.J.A.C. 7:7-15.4(q) or elsewhere in the CZM rules, and so the words
should be given their "ordinary and commonsense meaning." In re Election Law
Enforcement Comm'n, 201 N.J. at 263. Merriam-Webster Dictionary defines
"tanker" as "a cargo ship fitted with tanks for carrying liquid in bulk."4 Its
definition of "terminal" that is most applicable in this context is "either end of
a carrier line having facilities for the handling of freight and passengers ."5 By
these definitions, the GLC is a tanker terminal. Dock 2 may also arguably meet
4
See Tanker, Merriam-Webster,
https://www.merriam-webster.com/dictionary/tanker (last viewed May 20,
2021).
5
See Terminal, Merriam-Webster,
https://www.merriam-webster.com/dictionary/terminal (last viewed May 20,
2021).
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these definitions, because it is a structure where liquid cargo from vessels will
be loaded; however, we are satisfied that for purposes of CZM rules, Dock 2 is
not a tanker terminal, because it is merely an additional set of two berths at a
preexisting facility that has already been evaluated under the tanker terminal
standards.
We further find no merit in appellants' argument that the DEP should not
have issued the Permit due to the location of Dock 2 in an area where tanker
terminals are "discouraged." N.J.A.C. 7:7-15.4(q) does not absolutely forbid
such facilities from being sited outside the Port of New York and New Jersey
and the Port of Camden and Philadelphia. Rather, under N.J.A.C. 7:7-1.5, and
similar to the situation in In re Stream Encroachment Permit, 402 N.J. Super. at
605, a tanker terminal may be located in other areas if the DEP determines that
it is in the public interest despite the "discouraged" status. Moreover, this
argument would have been more appropriately directed toward the siting of the
GLC but now that the GLC is located where it is, any added berths like Dock 2
logically must be built at the same site. For these reasons, we conclude the DEP
did not act arbitrarily, capriciously, or unreasonably by issuing the Permit
without evaluating Dock 2 as a new tanker terminal under N.J.A.C. 7:7-15.4(q).
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Impacts to Sturgeon and SAV
N.J.A.C. 7:7-16.2(b) states that "[a]ny activity that would adversely
impact the natural functioning of marine fish, including the reproductive,
spawning and migratory patterns or species abundance or diversity of marine
fish, is discouraged." More specifically, the DEP may authorize dredging in a
waterway "on a seasonally restricted basis," if the area is a "known spawning,
wintering or nursery area[] of shortnose sturgeon, winter flounder, Atlantic
sturgeon, alewife, blueback herring, striped bass or blue crab," or if it is
"downstream of known anadromous fish spawning sites . . . where the predicted
turbidity plume will encompass the entire cross-sectional area of the water body,
thus forming a potential blockage to upstream migration." N.J.A.C. 7:7 -
12.7(c)(10)(vii). The DEP will weigh the "ecological values" stated in these
regulations "in comparison to the public value to be served by the new
dredging." N.J.A.C. 7:7-12.7(h).
Here, appellants asserted during the public comment period that Dock 2
could have a negative impact on federally protected Atlantic sturgeon and short -
nosed sturgeon, which use the Delaware River as a breeding and foraging
ground, and on SAV growing in the riverbed. As part of its permit application
for Dock 2, DRP performed analyses of fish migratory pathways as required by
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N.J.A.C. 7:7-9.5, of endangered and threatened wildlife and plant species
habitats as required by N.J.A.C. 7:7-9.36, and of the presence of SAV as
required by N.J.A.C. 7:7-9.6. DRP's construction plan included best practices
intended to protect sturgeon and other fish in the river. These included ceas ing
all in-water work and disturbances to sediment from March 15 to June 30 of
each year, when sturgeon are most likely to be migrating and spawning. This
condition was also present in the 2017 Dock 1/GLC permit.
In its application, DRP stated that the dock will attract approximately
thirty-seven vessels to be loaded with "liquid bulk products" per year. DRP
stated in response to appellants' comment that this predicted traffic represented
no increase to vessel traffic in the Delaware River compared to that already
predicted for Dock 1. It explained that the original Dock 1/GLC application
accounted for ninety-one vessels annually to use the facility; however, the
proposed use of the facility had since shifted to involve more bulk liquid
products such as LNG, which involves ships that need to stay in dock longer to
be filled to capacity. As a result, DRP estimated that fifty-two vessels per year
would use Dock 1; added to the thirty-seven predicted for Dock 2, the number
of vessels that would call at the GLC each year would total eighty-nine.
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A report issued by the National Marine Fisheries Service (NMFS) in 2017,
in connection with DRP's application for an Army Corps of Engineers permit
for Dock 1 and the GLC, stated that the increase in vessel traffic associated with
Dock 1 would be "very small (0.37%) relative to the then-existing baseline of
traffic on the Delaware River." This report opined that vessels bound for and
berthed at Dock 1 could strike sturgeon, but predicted that only seven fish deaths
would result over a thirty-year period of the GLC's operation. The NMFS stated
that this level of casualties would not present a risk to the continued existence
of endangered sturgeon species. In a November 2019 letter, it stated that the
construction and operation of Dock 2 would not adversely affect sturgeon to any
greater degree than the minimal impact already caused by Dock 1. The DEP
thus concluded that Dock 2 "would not impact marine fisheries," and included
conditions in the Permit mirroring DRP's stated best practices, including the
limitation on the time for dredging.
In its response to comments, the DEP also stated that DRP had mapped
out Dock 2 and its associated dredge area "to avoid the existing [SAV] beds" in
the area of the river near the GLC, and that DRP was "continuing to evaluate the
project area for the presence of SAV to ensure that impacts to this resource are
minimized." A map of the proposed Dock 2 shows that it will be located far
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from shore, away from most of the known SAV beds in the area. A survey of
Dock 2's proposed location revealed one "small SAV bed and some solitary
plants" within fifteen feet of the dock's connecting trestle; it concluded that
0.011 acres of SAV might be "shaded" by the trestle and that approximately 6.3
square feet of SAV would be removed to place supporting piles for the structure.
Appellants further contend that on September 19, 2019, the DEP informed
DRP "that the SAV mitigation had failed," and that therefore, there is no "viable
mitigation plan" in place; however, the SAV mitigation plan appellants
reference pertained to the construction of Dock 1, not Dock 2.
We reject appellants' argument that because the DEP did not evaluate
Dock 2 as an energy facility under N.J.A.C. 7:7-15.4, it failed to consider the
potential negative impacts to fish and SAV that could result from the dock's
construction and operation. Instead, the record contains substantial evidence
supporting the DEP's findings that the Dock 2 project would present no, or
relatively little, threat to any species. Mindful of the deference we should show
to an agency in its areas of expertise, Messick, 420 N.J. Super at 325, we
conclude the DEP did not act arbitrarily, capriciously, or unreasonably when
issuing the Permit.
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B. Information About Impacts to Water Quality
Appellants assert the DEP issued the Permit without requiring DRP to
provide sufficient information about negative impacts on water quality that may
result from the construction of Dock 2. They contend the DEP wrongfully failed
to require DRP to include testing for nitrobenzene, aniline, and volatile organic
compounds (VOCs) in its Sediment Sampling and Analysis Plan (SSAP), despite
the "known contamination" of the former DuPont site. They also argue that the
DEP should not have issued the Permit without waiting for DRP to pro vide the
results of an "effluent (modified) elutriate analysis." Appellants claim that this
analysis, and testing for those contaminants, would have provided DEP with
"vital information" about the possibility that river water would become
contaminated due to the dredging associated with Dock 2's construction.
Testing for Specific Contaminants
N.J.A.C. 7:7-12.7(b) states that "new dredging and the management of the
dredged material shall be conducted in accordance with Appendix G" to CZM
rules. The regulation further states that an applicant for a permit under CZM
rules may be required, before beginning any dredging, to conduct "chemical and
physical analysis of the dredged material, including water quality predictive
analyses for surface water and ground water," if the DEP "suspects
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contamination of sediments." N.J.A.C. 7:7-12.7(c)(10)(ii). If the pre-dredging
chemical analysis "reveals significant contamination," and/or if "predicted water
quality parameters are likely to exceed" the DEP's surface water quality
standards, the DEP "will work cooperatively with the applicant to fashion
acceptable control measures . . . ." N.J.A.C. 7:7-12.7(c)(10)(iv).
Here, in advance of its permit application for Dock 2, DRP prepared and
submitted to the DEP its SSAP: its plan to collect and test sediment samples in
the area to be dredged for the project, to determine whether certain contaminants
were present which, when disturbed, could affect water quality in the area. The
DEP approved the SSAP in December 2018. Thereafter, in January and
February 2019, the DRP collected sixty-four core samples from sediments
within the dredging area, which were then composited. The twenty-two
composite samples were subjected to laboratory analyses for semi-volatile
organic compounds, dioxins, furans, pesticides, metals, polychlorinated
biphenyls, and other materials, including nitrobenzene. Ultimately, all of the
tested-for contaminants were either not detected, or were detected at
concentrations below the DEP's most stringent standards for soils – those for
residential areas where humans may come into direct contact with the soil. See
N.J.A.C. 7:26D-4.2; N.J.A.C. 7:26D, App. 1.
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In March 2019, DRP submitted a Dredged Material Management Plan
(DMMP) to DEP presenting the testing results and a proposed plan for managing
and disposing the sediments that would be dredged. The DMMP set forth
several "Best Management Practices" to minimize loss of material into the river
during dredging and to thus reduce the amount of suspended sedimen ts left
behind in the water.
The DEP approved the DMMP, and the dredging practices proposed by
DRP were incorporated into the Permit as conditions. For example, just as the
DMMP stated, the Permit requires the use of a "clamshell bucket" equipped with
sensors to ensure complete closure before it lifts any sediment from the water,
imposes conditions on the rate of descent and ascent of the bucket, and requires
the hiring of an independent dredging inspector to monitor the project and
submit weekly inspection forms to the DEP. It also requires that all barges and
holding scows transporting dredged sediment for disposal be watertight, and
only allows water from these vessels to be discharged into the river after dredge
material has been held for at least twenty-four hours to make sure all sediments
settle and are not released. These conditions conform to the "Best Management
Practices" set forth in N.J.A.C. 7:7 Appendix G, Chapter IV, Subsection A.3,
and are the same as those imposed in the Dock 1/GLC permit.
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Appellants allege the DEP should not have issued the Permit without
requiring DRP to test for nitrobenzene, aniline, and VOCs. We find the
arguments as to each of these types of contaminant unavailing. First, although
nitrobenzene was not listed in the summary tables of DRP's DMMP, the record
reflects that DRP did test for this compound, but that it was not detected in any
of the sediment samples sent for analysis. Appellants' argument about
nitrobenzene is therefore factually incorrect and lacks merit.
Next, N.J.A.C. 7:7 Appendix G, Attachment C, Subsection I(a) states:
"[r]equired bulk sediment chemistry, modified elutriate, and leaching tests must
include analysis for all target analytes listed in Attachment D, excepting the
[VOC] list, which will be required on a case-by-case basis. Typically, [VOC]
testing will be instituted where known or suspected discharges of such
compounds have occurred." As a result, DRP would only have been required to
test for VOCs if the DEP knew or had reason to suspect that the sediments in
the area to be dredged for Dock 2 would contain such contaminants. Although
appellants point to the "known" contamination of the DuPont site in support of
their argument that the DEP should have required VOC testing, we note that the
dredging associated with Dock 2's construction will occur significantly away
from the shoreline. No evidence in the record suggests that any theoretical
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contamination with VOCs present in the upland parts of the DuPont site extends
into the underwater sediments in the area of the river where the dredging for
Dock 2 will happen. We conclude the DEP's exercise of discretion in not
requiring testing for VOCs was not arbitrary, capricious, or unreasonable.
Finally, N.J.A.C. 7:7 Appendix G, Attachment D, which lists all of the
contaminants for which pre-dredging testing is required, does not include
aniline.6 As a result, DRP was not required to test for this compound, and the
issuance of the Permit without such a test was proper.
Effluent Elutriate Analysis
N.J.A.C. 7:7 Appendix G, Chapter IV, Subsection A, Table 1 sets forth
the types of sediment testing an applicant must perform before it may begin any
dredging project, based on the type of facility where the dredged sediments will
ultimately be taken for disposal. The table identifies four categories of "dredged
material management" facilities: "open water" sites, "subaqueous disposal pits,"
"containment areas" which may be located on "existing islands" or in "nearshore
areas," and "upland confined disposal facilities (CDFs)." Ibid.6
Attachment D lists derivatives of aniline: 4-chloroaniline, and 2-, 3-, and 4-
nitroaniline. However, these are different compounds from aniline itself. See
https://en.wikipedia.org/wiki/Aniline (last viewed May 20, 2021).
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An "effluent (modified) elutriate analysis" is a type of sediment analysis
"[u]sed to predict the quality of dewatering effluent discharged from upland
confined disposal facilities and similar operations." N.J.A.C. 7:7, App. G, Ch.
VII.7 Appendix G, Chapter IV, Subsection A, Table 1 provides that this test is
required where sediment will be disposed in a containment area or at an upland
CDF. However, if an open water site or a subaqueous disposal pit will be used,
the test "may be required when dredge material originates in a waterbody
different from that in which the management site is located." Ibid.Here, when DRP submitted its SSAP to DEP in 2018, it identified six
potential sites for disposal of its dredged materials, several of which were upland
CDFs. As such, the SSAP also included a plan for effluent elutriate analysis. It
appears that this test was completed along with the other tests described above.
However, the DMMP did not include the results of test because they were not
yet available at the time it was submitted, and they are also not part of the record
on appeal.
7
An elutriate test involves mixing dredged material with dredge-site water and
allowing the mixture to settle. The potential release of any dissolved chemical
constituents in the dredged material is determined by chemical analysis of the
liquid lying above the heavier material. N.J.A.C. 7:7, App. G, Ch. IV.
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When it submitted the DMMP, DRP had decided based on the SSAP's
results to narrow its alternatives for sediment disposal to two potential locations:
White's Rehandling Basin, located on the Delaware River a few miles from the
GLC, and Fort Mifflin, a facility in Pennsylvania operated by the Army Corps
of Engineers.8 White's Rehandling Basin is an open water disposal site; its
operator, Weeks Marine, Inc., disposes of sediments by dumping them into an
enclosed portion of the river that is considered the same waterbody as the area
from which DRP will be dredging. Located outside New Jersey, Fort Mifflin is
subject to Pennsylvania's sediment testing and analysis requirements.
The Permit provides that if DRP decides to use White's Rehandling Basin
for disposal, it must comply with all conditions specified in the operational
permits DEP has issued to Weeks Marine, Inc. If DRP uses Fort Mifflin, it must
obtain additional approvals from the Pennsylvania Department of
Environmental Protection. Should DRP choose any other location, it must
request a modification of the Permit.
8
White's Rehandling Basin and Fort Mifflin are stated as approved disposal
sites for sediments DRP dredged and/or continues to dredge in relation to the
construction of the GLC and Dock 1, in the 2017 permit.
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We conclude the DEP did not act arbitrarily, capriciously, or unreasonably
when it issued the Permit without requiring DRP to submit the results of its
effluent elutriate analysis. According to the plain language of N.J.A.C. 7:7
Appendix G, Chapter IV, Subsection A, Table 1, this test was not required if
DRP utilizes White's Rehandling Basin to dispose of its dredged sediments. It
was also not required if DRP utilizes Fort Mifflin; although DRP may need to
submit the test results to Pennsylvania's Department of Environmental
Protection, this state's DEP did not need to see them.
In summary, we affirm the issuance of the Permit, as DRP conducted all
required pre-dredging chemical testing of sediments in the proposed dredging
area in accordance with CZM rules, and the DEP reviewed all of the results and
imposed conditions in the Permit that were in line with the Best Management
Practices for dredging outlined in those rules. As such, the DEP properly
considered the possibility of negative impacts to water quality.
C. Industrial Stormwater Permit
Appellants also contend the DEP wrongfully issued the Permit without
requiring that DRP first obtain an Industrial Stormwater Permit for Dock 2.
They argue that Dock 2 constitutes a "major development" under N.J.A.C. 7:8 -
1.2, and that therefore such a permit was required by N.J.A.C. 7:7-16.6.
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CZM Rules provide that "[i]f a project or activity meets the definition of
'major development' at N.J.A.C. 7:8-1.2, then [it] shall comply with the
Stormwater Management rules at N.J.A.C. 7:8." N.J.A.C. 7:7-16.6(a).
Compliance is "appropriate" because "development and land use activities
contribute greatly to the types and amount of pollutants that are found in
stormwater runoff," and the rules "provide minimum Statewide runoff
techniques, as well as special protection measures for environmentally sensitive
water and land areas." N.J.A.C. 7:6-16.6(b).
Under N.J.A.C. 7:8-1.2, a "major development" is "any development that
provides for ultimately disturbing one or more acres of land or increasing
impervious surface by one-quarter acre or more." "Disturbance" means "the
placement of impervious surface or exposure and/or movement of soil or
bedrock or clearing, cutting, or removing of vegetation." Ibid. "Impervious
surface" means "a surface that has been covered with a layer of material so that
it is highly resistant to infiltration by water." Ibid.As previously noted, the courts generally defer to an agency's
interpretation and application of a regulation "within the sphere of its authority"
unless its view or action is "plainly unreasonable." In re Election Law
Enforcement Comm'n, 201 N.J. at 262. In In re Freshwater General Permit No.
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7, 405 N.J. Super. 204, 214 (App. Div. 2009), we specifically deferred to the
DEP's interpretation of what constitutes a "major development" under N.J.A.C.
7:8-1.2 when upholding the issuance of a permit to the respondent related to the
digging of a ditch, without requiring him to comply with the Stormwater
Management rules. The appellant, who owned adjacent land, argued that this
was improper in part because the overall project the ditch was part of was an
indoor ice rink that added enough new impervious surface to be considered a
"major development." Id. at 212-14. We affirmed the DEP's decision granting
the permit, agreeing with the agency that the permit was "limited to the activities
in the ditch, not the ice rink" and that the ditch, in itself, disturbed less than an
acre of land and did not create new impervious surface over more than one -
quarter acre. Id. at 213-14.
Here, as part of the Dock 1/GLC permitting process, DRP was required to
show compliance with the Stormwater Management rules, N.J.A.C. 7:8-1.1 to -
6.3, by designing a stormwater management system for the facility. The DEP
concluded that DRP's plan satisfied the relevant standards.
The plans for the construction of Dock 2 show that the new dock structure
will be mostly over water, and will add approximately 1250 square feet of
impervious surface landward of the Delaware River's mean high water line.
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Dock 2 will not cause any physical changes to the facility site that have required
modifications to DRP's existing stormwater management system. Appellants
argued in its public comment letter that the Stormwater Management rules
applied to the Dock 2 project, but the DEP responded that no further analysis
under those rules was required.
We conclude that, as in In re Freshwater General Permit No. 7, the DEP
properly found that Dock 2, considered by itself, was not a "major development"
as defined by N.J.A.C. 7:8-1.2. While construction of the dock will require
significant underwater dredging, it does not involve the "movement of soil or
bedrock or clearing, cutting, or removing of vegetation" over more than one acre
of dry land because the bulk of the new structure will be erected over water
connected only by a relatively narrow trestle. It will add impervious surface
much less than the quarter-acre stated in the regulation. 9 Although the GLC, in
total, constitutes a "major development" requiring compliance with the
Stormwater Management rules, the matter under review concerns only Dock 2
and DRP has already demonstrated compliance as to the greater facility. We
therefore conclude the DEP did not act arbitrarily, capriciously, or unreasonably
9
Since one acre equals 43,560 square feet, under N.J.A.C. 7:8-1.2, a "major
development" is one that disturbs at least that area of land or that adds over
10,890 square feet of impervious surface.
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when it issued the Permit without first requiring that DRP obtain an Industrial
Stormwater Permit.
Affirmed.
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