NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5266-07T3
A-5271-07T3
A-5990-07T3
A-5993-07T3
IN THE MATTER OF ADOPTION OF
AMENDMENTS TO THE NORTHEAST,
UPPER RARITAN, SUSSEX COUNTY
APPROVED FOR PUBLICATION
AND UPPER DELAWARE WATER
QUALITY MANAGEMENT PLANS TO May 15, 2014
ESTABLISH TOTAL MAXIMUM DAILY
LOADS IN THE NON-TIDAL PASSAIC APPELLATE DIVISION
RIVER BASIN AND POMPTON LAKE/
RAMAPO RIVER ADDRESSING PHOSPHORUS
IMPAIRMENTS AND TO ESTABLISH
WATERSHED CRITERIA.
___________________________________
Argued June 2, 2009 – Remanded July 21, 2009
Reargued March 5, 2014 – Decided May 15, 2014
Before Judges Grall, Waugh, and Accurso.
On appeal from the New Jersey Department of
Environmental Protection.
Diane Alexander argued the cause for
appellants Pequannock, Lincoln Park &
Fairfield Sewerage Authority, Hanover
Sewerage Authority, and Madison-Chatham
Joint Meeting (Maraziti, Falcon & Healey,
L.L.P., attorneys; Ms. Alexander, of
counsel and on the briefs).
Robert A. Goodsell argued the cause for
appellant Warren Township Sewerage Authority
(Post, Polak, Goodsell, MacNeill &
Strauchler, P.A., attorneys; Mr. Goodsell,
of counsel and on the briefs; Alexa E.
Miller, on the briefs).
Jane F. Engel, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Environmental Protection (John
J. Hoffman, Acting Attorney General,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Ms. Engel, on
the brief).
William R. Lundsten argued the cause for
respondent North Jersey District Water
Supply Commission (DeCotiis, FitzPatrick &
Cole, LLP, attorneys; Mr. Lundsten, of
counsel; Kevin M. Kinsella, on the brief).
The opinion of the court was delivered by
WAUGH, J.A.D.
Appellants Pequannock, Lincoln Park and Fairfield Sewerage
Authority (Two Bridges), Hanover Sewerage Authority (Hanover),
Madison-Chatham Joint Meeting (Madison-Chatham), and Warren
Township Sewerage Authority (WTSA) appeal the determination of
respondent New Jersey Department of Environmental Protection
(Department), following a remand1 from this court, that it would
be institutionally impracticable for respondent North Jersey
District Water Supply Commission (North Jersey) to implement an
as-needed-treatment program to limit the phosphorus content of
effluent discharged into the Passaic River during the months
between November and April. We affirm.
1
In re Adoption of Amendments to the Ne., Upper Raritan, Sussex
Cnty. & Upper Del. Water Quality Mgmt. Plans, Nos. A-5266-07, A-
5271-07, A-5990-07, and A-5993-07 (App. Div. July 21, 2009).
2 A-5266-07T3
I.
We discern the following facts and procedural history from
the record on appeal.2
In 2008, the Department adopted amendments to its
Northeast, Upper Raritan, Sussex County, and Upper Delaware
Water Quality Management Plans (WQMPs). Those amendments
established total maximum daily loads (TMDLs) limiting the
amount of phosphorus, a nutrient that contributes to the growth
of algae, discharged into the Passaic River. Appellants collect
municipal wastewater for treatment, after which they discharge
the treated water into the Passaic River.3
In 1987, the Department issued a special report, entitled
"Passaic River Water Quality Management Study," which
recommended that a detailed nutrient study be conducted to
determine the maximum amount of phosphorus that sewage treatment
plants should be allowed to discharge into the Passaic River.
The Department subsequently adopted interim standards for the
phosphorus content of effluent discharged into the river and
2
We incorporate by reference the more detailed factual,
procedural, and statutory background contained in our earlier
opinion.
3
We note that, as of the date of oral argument, none of the
appellants have even constructed the facilities necessary to
treat the phosphorus level of their effluent. The manner in
which those facilities are constructed does not depend on the
outcome of this appeal.
3 A-5266-07T3
undertook extensive studies to determine appropriate long-term
standards. That process included studies by a private
consulting firm and a panel of academics, comments by technical
and public advisory committees, and public hearings. In April
2008, the Department adopted the WQMPs at issue in this appeal.
Appellants filed separate appeals, challenging aspects of
the WQMPs. We consolidated the appeals. Appellants argued that
the Department was arbitrary and capricious in requiring them to
comply with the stringent limitations on the phosphorus content
of their effluent during times of the year when daily adherence
to such limitations is not necessary to maintain water quality
in the waterways located downstream from their facilities,
particularly the location from which the Wanaque Reservoir,
operated by respondent North Jersey, diverts water to replenish
the reservoir. Instead, they argued that the quality of water
in the Wanaque Reservoir could be maintained adequately if the
Department only required strict compliance from May through
October, with treatment at other times on an as-needed basis.
During the off-season, from November to April, appellants
contend compliance should be required only when North Jersey
actually anticipates diverting water from the Passaic River into
the Wanaque Reservoir. They asserted that off-season diversion
occurs infrequently and can be scheduled sufficiently in advance
4 A-5266-07T3
to permit dischargers to reduce their effluent to the required
phosphorus standard. The Department had rejected that approach
during the WQMPs adoption process, taking the position that
"[t]ying effluent limits to an unpredictable pumping regimen
outside the control of the regulated entity is institutionally
impracticable." 40 N.J.R. 2574(b) (May 19, 2008).
In our earlier opinion, we observed that the Department had
not explained what it meant by "institutionally impracticable"
and noted that the extensive documentary record supporting
adoption of the stringent discharge limitations did not address
that issue. In re Adoption of Amendments to the Ne., Upper
Raritan, Sussex Cnty. & Upper Del. Water Quality Mgmt. Plans,
supra, Nos. A-5266-07, A-5271-07, A-5990-07, and A-5993-07 (slip
op. at 12). We concluded that
the feasibility of generally requiring
adherence to those limitations only from May
through October depends on the answer to two
questions. First, how long in advance can
North Jersey reasonably be expected to know
of the need for an off-season diversion?
Second, how much advance notice of a
proposed diversion will appellants and other
dischargers require in order to bring the
level of phosphorus in their effluent into
compliance with the new strict phosphorus
limitations during the off-season?
[Id. (slip op. at 13).]
5 A-5266-07T3
Consequently, we remanded for an evidentiary hearing to address
those questions, but upheld the validity of the WQMPs amendments
in all other respects. We retained jurisdiction.
On remand, the Department transferred the matter to the
Office of Administrative Law (OAL) for an evidentiary hearing.
Following some motion practice not involved in this appeal, 4 the
administrative law judge (ALJ) issued a pre-hearing order that
provided for all testimony to be pre-filed, with the hearing
limited to cross-examination and redirect-examination. The
hearing took place on seven days between May 20 and December 17,
2010.
With respect to the first question, how far in advance
North Jersey can reasonably be expected to predict the need for
an off-season diversion of water from the Passaic River to the
Wanaque Reservoir, the parties presented three witnesses: Dr.
Pen C. Tao, manager and hydrologist of North Jersey's Source
Water Management and Planning Department on behalf of North
Jersey; Richard D. Grabowski, the Department's Supervising
Environmental Specialist in the Division of Water Supply, Bureau
4
The Department objected to appellants' demands for certain
water quality data used in developing the TMDLs and moved to
limit discovery. The ALJ granted the motion. The Commissioner
denied interlocutory review, and we denied leave to appeal. The
ALJ also granted the Department's motion to join North Jersey as
an indispensable party. North Jersey sought interlocutory
review of that order, which the Commissioner denied, as did we.
6 A-5266-07T3
of Water Allocation on behalf of the Department; and Les K.
Lampe, a licensed professional engineer and Vice President of
Black and Veatch in its Water Resources Global Practice and
Technology Leader Department on behalf of appellants.
On the second issue, how much advance notice of a diversion
is required for dischargers to bring their effluent into
compliance with the required phosphorus limitations, the parties
presented six witnesses: Jurek Patoczka,5 licensed professional
engineer with Hatch Mott MacDonald on behalf of WTSA; Robert N.
Bongiovanni, the Executive Director of Two Bridges; Robert
Rectanus,6 senior engineer with Black and Veatch, the consulting
engineering firm retained by Two Bridges to develop a plan for
compliance with the TMDLs; Louis T. Barry, a licensed
professional engineer with Chavond-Barry Engineering,
consultants to Two Bridges; Timothy D. Bradley, a licensed
professional engineer and the Director of Wastewater Practice
for Omni Environmental, consultants to Madison-Chatham; and
Michael Wynne, Executive Director of Hanover.
5
Please note that Patoczka's name is misspelled as "Uri Petaska"
in the transcript.
6
Please note the Rectanus's last name is misspelled as "Retanis"
in the transcript.
7 A-5266-07T3
With respect to the time it takes "a clean drop of water"
to travel from the WTSA treatment plant to the confluence of the
Passaic River with the Pompton River, Patricia Kehrberger, an
expert in water quality modeling and evaluation, testified for
WTSA; and Hui Pang, an expert in investigation and modeling of
the transport of pollutants in river and lake systems, testified
for the Department. Pilar Patterson, Bureau Chief of the
Department's Bureau of Surface Water Permitting, testified about
the time required for dischargers to sample and demonstrate
compliance with the applicable TMDLs limit.
Barbara Hirst, Chief of the Department's Bureau of
Environmental Analysis and Restoration within the Division of
Watershed Management, testified concerning the Department's
earlier rulemaking decision. Richard T. Dewling, a licensed
professional engineer and President of Dewling Associates, Inc.,
testified on behalf of appellants that there was no scientific
or technical basis for requiring phosphorus to be removed in the
winter months when water is not diverted to the Wanaque
Reservoir.
In her decision, the ALJ summarized the testimony of the
seventeen witnesses presented by the parties, all of whom were
qualified as experts in their fields. She determined that at
the time the amended WQMPs were adopted there had been no
8 A-5266-07T3
objective substantiation of the Department's conclusion that
conditional off-season limitations were "institutionally
impracticable."
Based upon her review of the historic records, the ALJ
found that, in the years 2000 to 2009, North Jersey diverted
water from the Passaic River during winter months on only six
occasions that would have required dischargers to commence
treatment if an off-season, as-needed treatment program had been
in place. Four of those occasions would have involved a
temporary period of phosphorus treatment, while two would have
necessitated only an early resumption of the regular summer
treatment schedule. In the earlier period of 1990 to 1999,
North Jersey diverted water from the Passaic River during winter
months on only five occasions, four of which would have required
temporary treatment. The other would have been an early
resumption of regular treatment.
The ALJ concluded that North Jersey is capable of
predicting most of the conditions requiring diversions fourteen
days or more in advance. She noted that the "real time"
conditions have not been significant to the pumping decisions
historically. She found that North Jersey is capable of
notifying the Department and dischargers of potential diversions
two weeks in advance of any actual diversions. She further
9 A-5266-07T3
concluded that a fourteen-day notice requirement prior to any
water diversion would not lead to a disastrous water supply
shortfall in the northeastern region of New Jersey.
Because North Jersey would exercise the sole discretion as
to when to initiate pumping events, the ALJ concluded that it
could build extra time into the notice period, thereby assuring
that the stricter phosphorus levels would be attained prior to
pumping. The dischargers would then be required to continue
treatment until North Jersey advised them that it was no longer
required.
Based on her evaluation and weighing of the scientific
evidence presented at the hearing, the ALJ concluded that
dischargers, including appellants, have sufficient information
about their own wastewater treatment processes, waste stream,
and chemical additives to enable them to resume the required
level of treatment when necessary to treat effluent prior to an
off-season diversion by North Jersey. She further concluded
that the scientific evidence adduced at the hearing supported
the conclusion of several experts, to a reasonable degree of
certainty in their fields of expertise, that dischargers that do
not utilize ponds in their treatment systems can re-achieve the
required monthly average level of phosphorus within five days of
initiating increased treatment. Dischargers with aeration or
10 A-5266-07T3
polishing ponds would need additional time, corresponding to the
number of days it takes the treated effluent to transit and exit
the pond.
The ALJ further concluded that appellants and other
upstream dischargers can comply with monitoring, testing, and
other reasonable conditions imposed by the Department incidental
to implementation of an off-season, as-needed treatment program.
In the event a discharger is unable to comply, the ALJ noted
that the non-compliant discharger could be required to treat on
a year-round basis.
The ALJ found that year-round treatment would result in use
of public resources for unnecessary introduction of chemicals
into the Passaic River and the production of additional sludge
requiring disposition. However, the ALJ also concluded that the
economic impact of year-round phosphorus treatment, even though
that treatment might be unnecessary for seventy-five percent or
four-and-one-half months of the winter season, had not been
demonstrated to be significant.
The ALJ reached five final conclusions. First, the
Department failed to make a diligent inquiry into the
feasibility of an off-season, as-needed treatment program in
initially adopting the revised WQMPs for the Passaic River
Basin. Second, such an off-season, as-needed treatment program
11 A-5266-07T3
is feasible given the current wastewater treatment technology,
assuming reasonable cooperation among the agencies involved.
Third, the costs of year-round phosphorus treatment would not
place a significant fiscal burden on upstream wastewater
treatment facilities. Fourth, an off-season, as-needed
treatment program would be environmentally protective of the
Wanaque Reservoir and its supply of safe drinking water and at
least environmentally neutral with respect to the Passaic River
and byproducts of the use of unnecessary chemicals. Fifth, the
Department has the necessary authority to implement the proposed
as-needed program.
The Commissioner rejected the ALJ's ultimate conclusion.
Instead, he concluded that implementation of such a treatment
program is institutionally impractical. He explained his
reasons in a detailed twenty-two page final decision. The
Commissioner forwarded his remand decision to the clerk in July
2012, after which we allowed the parties to submit additional
briefs.
II.
Appellants challenge the Commissioner's rejection of the
ALJ's conclusion that an off-season, as-needed treatment program
is institutionally feasible and argue that he improperly
rejected or ignored the ALJ's findings and conclusions.
12 A-5266-07T3
A.
Our scope of review of an administrative agency's final
determination is limited. In re Carter, 191 N.J. 474, 482
(2007). A court may reverse only if it "conclude[s] that the
decision of the administrative agency is arbitrary, capricious,
or unreasonable, or is not supported by substantial credible
evidence in the record as a whole." J.D. v. N.J. Div. of
Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div.
2000); see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
588 (1988); Outland v. Bd. of Trs., 326 N.J. Super. 395, 399
(1999). We accord a "strong presumption of reasonableness" to
an agency's "exercise of statutorily delegated
responsibilities." City of Newark v. Natural Res. Council, 82
N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L.
Ed. 2d 245 (1980). "The burden of demonstrating that the
agency's action was arbitrary, capricious or unreasonable rests
upon the [party] challenging the administrative action." In re
Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied,
188 N.J. 219 (2006).
Our limited standard of review of administrative agency
decisions is informed by three inquiries:
(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
13 A-5266-07T3
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., 143 N.J. 22, 25
(1995).]
Where an agency's expertise is a factor, a court defers to that
expertise, particularly in cases involving technical matters
within the agency's special competence. In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004).
"[J]udicial deference to administrative agencies stems from
the recognition that agencies have the specialized expertise
necessary to . . . deal[] with technical matters and are
'particularly well equipped to read and understand the massive
documents and to evaluate the factual and technical issues
. . . .'" N.J. State League of Municipalities v. Dep't of Cmty.
Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines Cnty.
Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)).
"'[W]here there is substantial evidence in the record to support
more than one regulatory conclusion, it is the agency's choice
which governs.'" Murray v. State Health Benefits Comm'n, 337
N.J. Super. 435, 442 (App. Div. 2001) (citation and internal
quotation marks omitted) (quoting In re Vineland Chem. Co., 243
N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 32314 A-5266-07T3
(1990)). The court "may not vacate an agency determination
because of doubts as to its wisdom or because the record may
support more than one result," but is "obliged to give due
deference to the view of those charged with the responsibility
of implementing legislative programs." In re N.J. Pinelands
Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App.
Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)),
certif. denied, 176 N.J. 281 (2003).
In reviewing administrative adjudications, an appellate
court must undertake a "careful and principled consideration of
the agency record and findings." Riverside Gen. Hosp. v. N.J.
Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). "If the
Appellate Division is satisfied after its review that the
evidence and the inferences to be drawn therefrom support the
agency head's decision, then it must affirm even if the court
feels that it would have reached a different result itself."
Clowes, supra, 109 N.J. at 588. If, however, our review of the
record leads us to conclude that the agency's finding is clearly
erroneous, the decision is not entitled to judicial deference
and must be set aside. L.M. v. Div. of Med. Assistance & Health
Servs., 140 N.J. 480, 490 (1995). We may not simply rubber
stamp an agency's decision. In re Taylor, 158 N.J. 644, 657
(1999).
15 A-5266-07T3
An ALJ's factual findings and legal conclusions are not
"binding upon [an] agency head, unless otherwise provided by
statute." N.J.A.C. 1:1-18.1(c). Accordingly, an agency head
reviews an ALJ's decision "de novo . . . based on the record"
before the ALJ. In re Parlow, 192 N.J. Super. 247, 248 (App.
Div. 1983).
An agency head may only reject the ALJ's credibility
findings after he or she "determine[s] from a review of the
record that the findings are arbitrary, capricious or
unreasonable or are not supported by sufficient, competent, and
credible evidence in the record." N.J.S.A. 52:14B-10(c).
However, the limitation in N.J.S.A. 52:14B-10(c) does not apply
to the testimony of expert witnesses. ZRB, L.L.C. v. N.J. Dep't
of Envtl. Prot., 403 N.J. Super. 531, 561 (App. Div. 2008); see
also Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 533-34 (App.
Div. 2004); S.D. v. Div. of Med. Assistance & Health Servs., 349
N.J. Super. 480, 485 (App. Div. 2002).
B.
Applying our limited scope of review to the remand decision
in light of the record on appeal, the ALJ's decision, and the
applicable law, we conclude that the result reached by the
Commissioner is not arbitrary, capricious, or unreasonable, and
16 A-5266-07T3
that it is supported by substantial credible evidence in the
record as a whole.
The decision at issue involves the enforcement of important
water quality statutes intended to improve the quality of
drinking water in the covered area through treatment to reduce
the amount of phosphorous and then to maintain that improved
quality. The Department, because of its expertise in the field
of environmental protection, has been tasked with the
responsibility of implementing and enforcing the new
requirements for the benefit of the public. As noted above, we
are required to defer to an administrative agency's expertise,
particularly in cases involving technical matters within the
agency's special competence. Freshwater Wetlands, supra, 180
N.J. at 488-89. That deference is clearly applicable in this
case. And, as with any review of an administrative action, the
issue is not whether we would have reached the same result, but
whether the result reached by the Commissioner is "arbitrary,
capricious, or unreasonable, or is not supported by substantial
credible evidence in the record as a whole." J.D., supra, 329
N.J. Super. at 521.
As we suspected in our initial opinion, the ALJ determined
that the Department's initial rejection of appellants' proposal
for off-season, as-needed treatment was not based on any
17 A-5266-07T3
significant study or consideration of the issue. To that
extent, it was arbitrary and not supported in the record. Our
remand was for the express purpose of requiring such a study, to
be focused on the time "reasonably" required by North Jersey to
predict the need for a diversion of water to the Wanaque
Reservoir and the lead time required by upstream dischargers,
such as appellants, to decrease their effluent to the required
phosphorus level.
The Commissioner concluded that the ALJ improperly shifted
the focus of the remand by approaching the analysis from the
perspective of whether North Jersey can "wait out" the time it
would take appellants and other dischargers to bring their
effluent into compliance with phosphorus limits, thereby
requiring North Jersey to alter its mode of operations. We
agree with that assessment to the extent that the ALJ appears to
have placed the burden on North Jersey to demonstrate that it
cannot and should not be required to change its way of operation
to accommodate an off-season, as-needed treatment program.
North Jersey's Tao took the position that diversion
decisions needed to be made in as little as two days, depending
on then-existing "real-time" circumstances. The ALJ questioned
that assertion. To a significant extent, the ALJ's skepticism
was based on Lampe's testimony that a diversion prediction could
18 A-5266-07T3
be made much further in advance. Tao's testimony was a mixture
of fact and expert testimony, but his opinion was based on his
historical experience at North Jersey, along with his
anticipation that, once the water quality has been improved,
North Jersey would make more frequent diversions of water for
shorter durations than in the past, and his acknowledged
expertise in the field. Lampe's testimony was based on models
and experience with treatment in other locations, rather than
actual experience concerning the Wanaque Reservoir.
We are satisfied that the Commissioner's decision to accept
Tao's opinion rather than Lampe's was not arbitrary or
capricious. It is adequately supported in the record,
especially given the Department's expertise. Even if the ALJ
was correct that Tao's two-day estimate is sometimes too low, we
conclude that there are sufficient facts in the record to
support the Commissioner's rejection of the ALJ's conclusion
that North Jersey could reasonably predict the need to divert
water significantly longer in advance, particularly given Tao's
desire to transition to more frequent, but less prolonged,
periods of diversion.
The Commissioner also rejected the ALJ's conclusions
concerning the time necessary for dischargers to bring the
quality of their effluent to the required level prior to a
19 A-5266-07T3
diversion. He observed that the ALJ's conclusion was based
primarily on Patoczka's testimony that it would take five days
to do so, testimony the Commissioner found inconsistent with
that of other witnesses whose opinions he found more reliable,
including Wynne, Rectanus, and Bradley. The Commissioner also
noted that Patoczka had not even distinguished between
facilities with and without finishing ponds, a factor found
significant by the ALJ. Based on his weighing of the expert
testimony and other evidence, the Commissioner concluded that it
would take at least seven days advance notice, with several
additional days for facilities using finishing ponds, for
dischargers to treat their effluent to the required level.
The Commissioner further rejected the ALJ's conclusion that
there would be sufficient time for dischargers to test the water
quality adequately after treatment but prior to diversion by
North Jersey. In doing so, he relied on Patterson's testimony
that it takes a minimum of twenty-eight hours for a discharger
with an on-site certified laboratory and typically about four
days for a discharger without an on-site laboratory, although
some can take as long as ten days. Bradley testified that for
facilities without on-site laboratories, it takes one week to
get printed results back from a laboratory, and expedited review
takes about half that time. Relying on N.J.A.C. 7:14A-14.2,
20 A-5266-07T3
table 14-1, which requires composite samples for major
dischargers to demonstrate compliance, the Commissioner declined
to accept the ALJ's finding that one sample would be sufficient
to demonstrate that the level of compliance had been achieved.
Finally, the Commissioner concluded that an off-season, as-
needed treatment program would impose significant burdens on the
Department, including a need for additional staff.
Our review of the record convinces us that the
Commissioner's conclusions were not arbitrary or capricious, and
that they are amply supported in the record. Like the issue of
North Jersey's ability to predict the need for diversion, the
time-to-treat issue implicates the Department's expertise. The
Commissioner's decision to give more weight to the opinions of
experts other than those favored by the ALJ is an exercise of
that expertise. Because the Commissioner's choice finds
significant support in the record, his decision was not
arbitrary or capricious.
Having upheld the Commissioner's determination that North
Jersey cannot reasonably be expected to give significant advance
notice of a diversion and that the dischargers cannot reasonably
be expected to bring their effluent to the required standard,
including time required for testing within the time reasonably
required by North Jersey, we find that the Commissioner's
21 A-5266-07T3
conclusion that an off-season, as-needed treatment program is
"institutionally impracticable" is not "arbitrary, capricious,
or unreasonable," nor is it "[un]supported by substantial
credible evidence in the record as a whole." J.D., supra, 329
N.J. Super. at 521. Especially on a question involving the
quality of drinking water, our obligation to defer to the
Department's special expertise, Freshwater Wetlands, supra, 180
N.J. at 488-89, permits no other result on the record before us.7
Affirmed.
7
As noted at the beginning of our opinion, the appellants have
not built the required facilities and, of necessity, have not
started treatment. Once the treatment program has actually been
in operation for several years and there is actual experience
concerning North Jersey's needs and timing of diversion,
appellants can seek to revisit the viability of an off-season,
as-needed treatment program.
22 A-5266-07T3