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In re State Department of Environmental Protection

Decided: February 9, 1981.

IN THE MATTER OF THE STATE DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF WATER RESOURCES OF THE STATE OF NEW JERSEY, CERTIFICATION APPROVING APPLICATION OF VINELAND CHEMICAL COMPANY, INC. FOR PERMISSION TO CONSTRUCT AND OPERATE AN INDUSTRIAL WASTE TREATMENT FACILITY


On appeal from the Department of Environmental Protection.

Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

This is an appeal by Vineland Chemical Co., Inc. from a decision of the Department of Environmental Protection, Division of Water Resources (DEP), imposing certain conditions on Vineland's approved permit to construct and operate an industrial wastewater treatment facility.

On December 11, 1978 Vineland submitted to DEP its permit application for construction of a proposed facility whose purpose would be to treat industrial wastewater containing arsenic in order to reduce the arsenic contamination to acceptable levels prior to discharge into the environment. By letter dated January 30, 1979, DEP issued certificate SID-10-78-54 approving Vineland's application for the construction and operation of an

industrial waste treatment facility. However, Vineland's permit was granted subject to certain conditions. Two of those conditions were that a licensed operator should be in charge of the wastewater treatment plant and that the DEP should have the right of entry to all premises for the purposes of inspection, sampling, copying or photographing.

On February 16, 1979 DEP sent Vineland a letter detailing the statutes, rules and regulations relative to the licensing of operators and the appropriate applications for licensing examinations. On March 5, 1979 Vineland's counsel appealed from a variety of DEP's conditions, including the licensing of operators and the right to enter Vineland's premises. By letter dated April 20, 1979 DEP agreed to modify several of its conditions. It refused, however, to modify the licensing of operators condition, contending that pursuant to N.J.S.A. 58:11-18.10(b) Vineland's proposed facility was a "public sewage treatment plant" and, therefore, Vineland was required to employ a licensed operator. DEP also refused to modify its condition regarding right of entry, noting it was empowered to enter Vineland's premises pursuant to either N.J.S.A. 58:10A-6 or N.J.S.A. 13:1D-9(d).

Vineland again appealed by letter dated April 30, 1979 to DEP, urging that Vineland's facility did not involve a public water supply system, public water treatment plant or public sewage plant and accordingly did not fall under N.J.S.A. 58:11-18.10 et seq. , and also urging that DEP's alleged "searching authority" pursuant to N.J.S.A. 58:10A-6 does not properly reflect the DEP Commissioner's power, and that N.J.S.A. 13:1D-9(d) is unconstitutional. On May 10, 1979 DEP responded that it continued to require as conditions the licensing of plant operators and the right to search "all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing." The quoted language regarding DEP's right to search Vineland's premises is theoretically a modification of the right of entry

because it follows exactly the statutory language of N.J.S.A. 58:10A-6(g).

As amended by letter dated May 10, 1979, the permit condition regarding DEP's right to enter Vineland's premises reads:

Pursuant to [ N.J.S.A. ] 58:10A-6, the Department shall have the right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.

Vineland's argument with respect to DEP's right of entry onto its premises is that both of the statutory sources from which DEP derives its authority to search are unconstitutional in light of Marshall v. Barlow's Inc. , 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).

N.J.S.A. 13:1D-9(d) enumerates the powers of DEP with regard to conservation and protection of the State's resources and provides:

The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State. The department shall in addition to the powers and duties vested in it by this act or by any other law have the power to:

d. Enter and inspect any building or place for the purpose of investigating an actual or suspected source of pollution of the environment and ascertaining compliance or noncompliance with any code, rules and regulations of the department. Any information relating to secret processes concerning methods of manufacture or production obtained in the course of such inspection, investigation or determination, shall be kept confidential and shall not be admissible in evidence in any court or in any other proceeding except before the department as herein defined. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing pollution of the environment . . . .

N.J.S.A. 58:10A-6, the provision dealing with the regulation of discharges of pollutants, authorization of permits and DEP's right of entry, provides in pertinent part:

b. It shall be unlawful for any person to build, install, modify or operate any facility for the collection, treatment or discharge of any pollutant, except after approval by the department pursuant to regulations adopted by the commissioner.

g. The commissioner shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing. [Emphasis supplied]

DEP contends*fn1 that the administrative warrant requirement of Barlow's does not apply in situations involving activities subject to pervasive or long-standing governmental regulation, because one engaging in such a closely regulated activity is regarded as having "voluntarily chosen to subject himself to a full arsenal of government regulation," and thus ...


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