NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ETC. Â VS. CHEYENNE CORPORATION(NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE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-4547-15T4
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
WATER COMPLIANCE AND ENFORCEMENT,
Petitioner-Respondent,
v.
CHEYENNE CORPORATION and
CAYUSE, LLC, t/a WILD
WEST CITY,
Respondents-Appellants.
_________________________________
CHEYENNE CORPORATION and
CAYSE, LLC, t/a WILD WEST
CITY,
Petitioners-Appellants,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
WATER ALLOCATION,
Respondent-Respondent.
_________________________________
Submitted October 17, 2017 – Decided October 27, 2017
Before Judges Fisher and Fasciale.
On appeal from the New Jersey Department of
Environmental Protection, Docket Nos. 130001-
1904320 and 171221186.
Mary K. Benson, attorney for appellant.
Christopher S. Porrino, Attorney General,
attorney for respondent (Mellisa H. Raksa,
Assistant Attorney General, of counsel; Susan
Savoca, Deputy Attorney General, and Melissa
P. Abatemarco, Deputy Attorney General, on the
brief).
PER CURIAM
Cheyenne Corporation (Cheyenne) and Cayuse, LLC (Cayuse),
trading as Wild West City (WWC), a seasonal western theme park,
appeals from a May 12, 2016 final agency decision by the New Jersey
Department of Environmental Protection (NJDEP). The decision
adopted an initial opinion by an administrative law judge (ALJ)
granting NJDEP's motion for summary decision and directing WWC to
re-designate or decommission its original water well; and denied
WWC's motions for summary decision and a waiver request. We
affirm.
Cayuse operates WWC, which is located on property owned by
Cheyenne. WWC is open from May through mid-October. Since the
1950s, a well has provided potable water to employees and patrons.
The well is located in a building on the highest point of the
property and is five feet long, five feet wide, and five feet
deep. The well casing is approximately one to three inches above
2 A-4547-15T4
the cement floor.1 The well is located approximately two-hundred
feet from a septic system. WWC manages animal waste on site from
livestock in the park. According to the NJDEP, little is known
about the construction or structural integrity of the well, and
WWC agrees that because "the well was constructed before well
construction details were required[,] there are no records for
this well on file with the State of New Jersey."
WWC monitored the well for total coliform each calendar
quarter that the system provided water to the public. On October
21, 22, and 23, 2010, the well water tested positive for E. coli.
In October 2010, NJDEP issued WWC a Notice of Non-Compliance,
citing violations of the New Jersey Safe Drinking Water Act (SDWA),
N.J.S.A. 58:12A-1 to -37. The notice required WWC to detail
proposed or completed remedial measures.
WWC suggested several reasons for the October 2010 positive
tests. WWC believed an animal may have burrowed into the well pit
area and covered the bottom of the well pit with four to six inches
of dirt. WWC also considered that the contamination might be due
to nearby road construction, which may have contaminated the
aquifer where the well is located.
1
Current standards require well casings to be at least twelve
inches above grade. N.J.A.C. 7:9D-2.3(b)(1).
3 A-4547-15T4
In March 2011, WWC communicated with NJDEP about a corrective
action plan. WWC agreed to: (1) extend the well casing, repair
the leak in the distribution manifold, and replace the well seal;
and (2) shock chlorinate the system to kill the E. coli bacteria.
If the water samples were still positive for E. coli at that point,
WWC stated it would "seek financing to dig a new well."
NJDEP approved the corrective action plan and required that
two rounds of water samples be collected five days apart showing
no chlorine residual in the well. NJDEP stated further that the
conditions must be met by the time WWC opened for its 2011 season
on April 30, 2011, or WWC would be required to "provide a new
source of water or install [four-]log virus inactivation."
In April 2011, WWC repaired the leak in the distribution
manifold and replaced the sanitary seal. WWC did not extend the
well casing. In April 2011 and May 2011, WWC sampled the water,
which tested negative for total coliform and E. coli. From March
2011 to May 2011, the water tested negative for total coliform and
E. coli.
On May 2011, NJDEP permitted WWC to resume using the well for
potable water. However, NJDEP required that WWC provide additional
information on how it improved the well, on chlorination
procedures, and NJDEP directed bi-weekly testing. NJDEP also
implemented procedures to follow if the water tested positive for
4 A-4547-15T4
E. coli, including the option to either install a new well or
install permanent four-log disinfection treatment within 120 days.
WWC agreed to these conditions.
In September 2011, a water sample from the well tested
positive for total coliform and for E. coli. Less than two weeks
later, another water sample tested negative for total coliform and
E. coli, but a sample from the distribution system tested positive
for both. As a result, WWC made available a temporary alternative
water source (a water truck). WWC then asked NJDEP to consider
the positive raw water sample as an "anomaly" because it had
previously obtained negative testing samples, and Hurricane Irene
may have affected the water sample. WWC suggested it could test
the water weekly in lieu of other corrective actions.
In late September 2011, NJDEP rejected WWC's request and
required WWC to comply with the imposed conditions, including
either installing a new well or installing permanent four-log
disinfection treatment. NJDEP further directed WWC to consult
with NJDEP within thirty days as to whether to install a new well
or to install four-log treatment on the existing well within 120
days.
In November 2011, WWC asked NJDEP to reconsider. NJDEP denied
the request and required WWC to complete the necessary corrective
action by January 2012. WWC also requested a variance pursuant
5 A-4547-15T4
to N.J.S.A. 58:12A-5, so that it would not have to drill a new
well or install the permanent four-log disinfection treatment in
the original well. In February 2012, NJDEP issued WWC a Notice
of Non-Compliance for failure to timely complete the corrective
action.
In April 2012, WWC submitted a corrective action plan. WWC
again requested the September 2011 positive water samples be
invalidated, citing negative water samples and the storms
occurring in that time period. NJDEP denied the repeated request
to invalidate the September 2011 test results, directed WWC to
disconnect the well within twenty-four hours and provide another
source of potable water, and instructed WWC to submit a corrective
action plan, as they agreed by April 13, 2012. WWC stated it had
"no intention at present of disconnecting or discontinuing the use
of our current well until we resolve this matter." WWC agreed to
post at all bathrooms and sinks not to use the water, and stated
it would make bottled water available.
In June 2012, WWC completed construction of a new well. That
month, NJDEP informed WWC it could take steps to re-designate the
original well for non-potable use. NJDEP informed WWC that if it
did not complete the steps within thirty days, the original well
would need to be decommissioned.
6 A-4547-15T4
On September 25, 2012, WWC submitted a request pursuant to
N.J.A.C. 7:1B to waive the decommissioning requirements in
N.J.A.C. 7:9D-3.1. On the same day, NJDEP informed WWC its waiver
request was incomplete and therefore would not be considered. WWC
renewed its request to waive the requirements to decommission the
original well, and in October 2012, NJDEP deemed the request
complete. In April 2013, NJDEP denied the waiver request because
it did not meet the requirements under N.J.A.C. 7:1B. WWC appealed
the waiver denial and requested a hearing, and the matter was
transmitted to the Office of Administrative Law (OAL).
On April 26, 2013, NJDEP issued an administrative order
requiring WWC re-designate or decommission the original well. WWC
then requested a hearing on the administrative order, and the
matter was transmitted to the OAL. In June 2014, the OAL
consolidated the matters.
The parties filed motions for summary decision. On December
31, 2015, the ALJ issued an initial decision granting NJDEP's
motion for summary decision, and upholding NJDEP's denial of WWC's
waiver request. The ALJ stated, "[t]he undisputed facts detail
[a] series of events, which culminated in two instances of positive
test samples for E. coli. . . . The preponderance of the credible
evidence established no basis for concluding that [NJDEP] deviated
from requiring the necessary corrective action consistent with its
7 A-4547-15T4
legal obligation." The ALJ also found that WWC should re-designate
the original well for non-potable use or decommission it, and that
WWC's waiver request was properly denied. On May 12, 2016, the
NJDEP Commissioner issued a final twenty-five page opinion
adopting the ALJ's initial decision.
On appeal, WWC argues that (1) the findings of the ALJ and
NJDEP are unsupported by the evidence; (2) NJDEP acted arbitrarily
by ordering WWC to cease testing the original well, ignoring WWC's
negative water-test results, and by concluding the original WWC
well was unsafe; (3) NJDEP's strict interpretation of the
corrective action plan was arbitrary, and violated WWC's right to
due process of law; (4) the finding that WWC's well endangers the
public health is unsupported by substantial evidence, and NJDEP
arbitrarily denied WWC's waiver request; and (5) NJDEP violated
the administrative procedure act.
We have "a limited role in reviewing a decision of an
administrative agency." Henry v. Rahway State Prison, 81 N.J.
571, 579 (1980). "A strong presumption of reasonableness attaches
to [an agency decision]." In re Vey, 272 N.J. Super. 199, 205
(App. Div. 1993), aff'd, 135 N.J. 306 (1994). We reverse an
agency's decision only where it is arbitrary, capricious,
unreasonable or unsupported by credible evidence in the record.
Henry, supra, 81 N.J. at 579-80.
8 A-4547-15T4
In reviewing whether an agency's action was arbitrary,
capricious, or unreasonable, we consider:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether in applying the
legislative policies to the facts, the agency
clearly erred in reaching a conclusion that
could not reasonably have been made on a
showing of the relevant factors.
[Mazza v. Bd. of Trs., Police & Firemen's Ret.
Sys., 143 N.J. 22, 25 (1995).]
An ALJ may grant a motion for summary decision "if the papers
and discovery which have been filed, together with the affidavits,
if any, show that there is no genuine issue as to any material
fact challenged and that the moving party is entitled to prevail
as a matter of law." N.J.A.C. 1:1-12.5(b). "Once the moving
party presents sufficient evidence in support of the motion, the
opposing party must proffer affidavits setting 'forth specific
facts showing that there is a genuine issue which can only be
determined in an evidentiary proceeding.'" Contini v. Bd. of
Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995),
(quoting N.J.A.C. 1:1-12.5(b)), certif. denied, 145 N.J. 372
(1996). The standard is essentially the same as the standard
"governing a motion under Rule 4:46-2 for summary judgment in
civil litigation." Ibid.
9 A-4547-15T4
The SDWA, N.J.S.A. 58:12A-1 to -37, declares that "it is a
paramount policy of the State to protect the purity of the water
we drink and that [NJDEP] shall be empowered to promulgate and
enforce regulations" related to drinking water. N.J.S.A. 58:12A-
2. NJDEP accordingly adopted primary drinking water regulations
that apply to public water systems and identify contaminants that
may adversely affect public health, specify a maximum contaminant
level (MCL) for each contaminant, and set criteria to ensure
drinking water complies with the MCL. N.J.A.C. 7:10-5.3. NJDEP
adopted the national primary drinking water regulations, 40 C.F.R.
§ 141, which includes analytical requirements for total coliform
and E. coli. 40 C.F.R. § 141.21.
The SDWA authorizes NJDEP to enforce the drinking water
requirements. N.J.S.A. 58:12A-4(c). N.J.S.A. 58:4A-4.2 also
authorizes NJDEP to direct a well be sealed that is "not in use
. . . or if it endangers life." NJDEP may order that any well be
decommissioned which is abandoned, "has not been maintained in a
condition that ensures protection from contamination for the
subsurface and percolating waters of the State," is damaged, has
been replaced by another well, or is contaminated, among other
reasons. N.J.A.C. 7:9D-3.1(a).
Here, the undisputed credible evidence shows WWC's original
well had two positive tests for E. coli over a one-year period.
10 A-4547-15T4
NJDEP repeatedly tried to work with WWC, and allowed WWC to resume
use of the well after the first E. coli incident. WWC never
definitively found the cause of either incident. The record shows
NJDEP repeatedly directed WWC to submit a corrective action plan
after the second incident. Pursuant to the parties' agreement
after the first incident, WWC was to drill a new well or install
the permanent four-log disinfection system in the original well
after a second incident of E. coli. WWC eventually chose to
install a new well.
WWC argues that because most of the test results have been
negative for total coliform and E. coli, and because the second
E. coli incident could have been affected by Hurricane Irene, it
should be able to resume use of the original well for potable use.
WWC does not provide any credible proof that its well was submerged
or otherwise directly affected by Hurricane Irene, but simply
states that other nearby wells tested positive for E. coli and
storms can cause these positive results. WWC's argument fails.
NJDEP has the discretion to regulate public drinking water and to
act in the interest of public safety. Although most of WWC's
water sample tests were negative for E. coli, NJDEP had the
discretionary power to require corrective action after the
positive results. After two separate incidents of positive E.
coli, NJDEP gave WWC options of installing a new well or installing
11 A-4547-15T4
the necessary disinfection system. WWC does not dispute the two
separate E. coli incidents.
We conclude NJDEP did not act arbitrarily or capriciously
when denying the waiver request for decommissioning the well.
NJDEP may "waive the strict compliance with any of its rules" in
the case of "(1) [c]onflicting rules; (2) [t]he strict compliance
with the rule would be unduly burdensome; (3) [a] net environmental
benefit; or (4) [a] public emergency." N.J.A.C. 7:1B-2.1. The
record shows that WWC failed to demonstrate any of these
conditions. Although WWC argues the corrective action is
expensive, it does not rise to the level to be unduly burdensome.
It was within NJDEP's discretion to deny such a waiver request.
NJDEP is charged with protecting public drinking water and there
is substantial evidence that NJDEP acted appropriately when
adopting the ALJ's decision granting NJDEP's motion for summary
decision and upholding NJDEP's denial of WWC's waiver request.
As the ALJ stated, the "preponderance of the credible evidence
established no basis for concluding that [NJDEP] deviated from
requiring the necessary corrective action consistent with its
legal obligation." The ALJ found that WWC should re-designate the
original well for non-potable use or decommission it, and that
WWC's waiver request was properly denied. The NJDEP Commissioner
filed a comprehensive twenty-five page opinion adopting the ALJ's
12 A-4547-15T4
decision. The decision was not arbitrary, capricious, or
unreasonable and it was supported by credible evidence in the
record.
We conclude that WWC's remaining arguments are without
sufficient merit to discuss in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
13 A-4547-15T4