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Department of Health v. Passaic Valley Sewerage Commission

Decided: April 24, 1968.


Mintz, J.s.c.


This matter is on an order to show cause why defendant Passaic Valley Sewerage Commission (hereinafter the "Commission") should not be directed to comply with orders of plaintiff Department of Health (hereinafter the Department). The Department issued two directives ordering defendant to improve its sewage treatment facilities so that its effluent, which is pumped through an outfall line into Upper New York Bay near Robbins Reef Light, will be less harmful to these New Jersey waters. Pursuant to N.J.S.A. 58:12-4 the Department has sued for summary injunctive relief. The Commission contends that the Department has no jurisdiction over it or its treatment and pumping plant at Wilson Avenue adjacent to Newark Bay in the City of Newark.

The Department's initial directive, issued April 25, 1965, ordered defendant Commission to install post-chlorination equipment for the disinfection of its effluent at its Newark Bay plant for the period May 15, 1967 to September 15, 1967 and for said periods in succeeding years. In this connection, pursuant to the State Public Sanitary Sewerage Facilities Assistance Act of 1965 (N.J.S.A. 26:2 E -1), plaintiff issued to defendant a $20,000 grant in September 1965 for a project feasibility study.

An amended directive, issued March 31, 1967, repeats the Department's demand, which had gone unheeded, for the installation of post-chlorination equipment, and further orders the Commission to effect a substantial improvement of its effluent treatment. The Department therein prescribes that on or before October 30, 1970 the Commission must

achieve a minimum 80% reduction in the biochemical oxygen demand (B.O.D.) of the sewage discharged from its plant into Upper New York Bay. Paragraph 2 of this order also requires the Commission to file a report for the Department's review and approval on or before October 1, 1967 regarding the proposed basis of the design of additions and alterations to its sewage treatment plant. Defendant has likewise failed to comply with this amended order.

Plaintiff contends that the Legislature's broad delegation of water pollution control authority to the Department in N.J.S.A. 58:12-2 and 3 and N.J.S.A. 26:1 A -37(i) confer sufficient jurisdiction to it over defendant Commission to validate the instant administrative orders.

N.J.S.A. 58:12-2 in part provides:

"The State Department of Health * * * shall investigate the various methods of sewage disposal in order that it may be able to make proper recommendations in regard thereto, shall require alterations, additions or improvements to sewage treatment works, shall investigate all complaints of pollution of the waters of this State which shall be brought to its notice, and may inspect any of the waters of this State.

If the department finds that any of said waters are being polluted in such manner as to cause or threaten injury to any of the inhabitants of this State, either in their health, comfort or property, or that any sewage treatment works are inadequate in capacity or unit design to properly care for, treat and dispose of sewage before an effluent from such works is discharged into any of said waters, it shall notify in writing any person, corporation or municipality found to be polluting said waters or owning, operating or controlling, separately or jointly, any such inadequate sewage treatment works, that prior to a time to be fixed by the department, which time shall not be later than five years from the date of the notice, the person, corporation or municipality polluting said waters must cease such polluting and make such disposition of its sewage and other polluting matter as shall be approved by the department. Such person, corporation or municipality owning, operating or controlling inadequate sewage treatment works as aforesaid must alter, add to or improve such works in order that the sewage being received therein shall be cared for, treated and disposed of, and the effluent discharged into said waters in a manner approved by the department. * * *"

N.J.S.A. 58:12-3 in part provides:

"Except under such conditions as shall be approved by the department, no person, corporation or municipality shall build any sewer, drain or sewerage system from which it is designed that any sewage or other harmful and deleterious matter, solid or liquid, shall flow into any of the waters of this state, or build, cause to be built or operate any plant for the treatment of sewage or other polluting substance from which the effluent is to flow into any of such waters, or, after the date specified in the notice provided for by section 58:12-2 of this title, permit any sewage or other polluting matter to flow into such waters from any sewer, drain or sewerage system under its control. * * *"

N.J.S.A. 26:1 A -37(i) provides that the Department shall supervise sanitary engineering facilities and in the exercise of such supervision make and enforce rules and regulations concerning plans and specifications for construction or improvement of sewerage systems and disposal plants for the treatment of sewage. As the waters of Upper New York Bay, into which the Commission's effluent is discharged, are within the Department's jurisdiction, N.J.S.A. 58:12-1, the Department urges that defendant's sewage treatment facilities are necessarily subject to plaintiff's orders.

As earlier noted, defendant Passaic Valley Sewerage Commission operates a sewage treatment plant in the City of Newark. This plant provides treatment for 28 municipalities or portions thereof in four counties who have jointly contracted for these services with the Commission. Through its outfall line into the New Jersey waters of Upper New York Bay, the said plant discharges approximately 200 mgd (million gallons per day) of sewage effluent. It is estimated that this discharge contains a residual pollution load "equivalent to [that] contributed by the discharge of raw sewage for a population of 3.5 million people."

The Passaic Valley Sewerage District and Commission was originally created under L. 1902, cc. 48-49. The statutory provisions dealing with the District and Commission are to be found in N.J.S.A. 58:14-1 to 58:34.30. This statute (chapter 14) established a 5-member operating board -- a

"body politic and corporate" -- authorized to coordinate the planning and financing of sewage disposal and water pollution control in the Passaic Valley Sewerage District. N.J.S.A. 58:14-2, 3. The discharge, directly or indirectly, of sewage or other polluting matter "into the waters of the Passaic river at any point between the Great falls in the City of Paterson and the mouth of said river at Newark Bay" or into the waters of its tributaries is prohibited. N.J.S.A. 58:14-7. The commissioners, or others injured by such discharges, may sue in the name of the commissioners to enforce this prohibition. N.J.S.A. 58:14-7, 33. In the ordinary course, projects for the District are initiated with a request from an appropriate municipal body to the commissioners for the preparation of plans and estimates for the construction of sewer lines and treatment plants. N.J.S.A. 58:14-9, 10, 11. Any municipality in the district may contract with others and with the Commission for the "construction, maintenance and operation" of sewers, plants and works. N.J.S.A. 58:14-12. The statute further provides a formula for cost apportionment among the contracting municipalities. N.J.S.A. 58:14-13. A contracting municipality finances projects by raising taxes or by borrowing "upon its notes or other temporary obligation" or by issuing permanent bonds. A municipality may not incur indebtedness for these purposes which exceeds 5% of its tax ratables. N.J.S.A. 58:14-23. For moneys required by the commissioners in the performance of a contract, they too may borrow upon their corporate notes or other obligations, N.J.S.A. 58:14-24, but may not mortgage or encumber any part of the sewerage system. N.J.S.A. 58:14-34.21.

The Commission contends that N.J.S.A. 58:12-2 and 3 do not vest any authority in the Department to control its operations. It bases its exemption, inter alia, on the concluding section in Title 58, chapter 12, which provides:

"The provisions of this chapter shall in no way affect or modify the provisions of any law conferring power and authority upon the Passaic valley sewerage commission in relation to the purification

of the Passaic river and the streams tributary thereto, and particularly the provisions of chapter 14 of this title (ยง ...

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