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In re Njpdes Permit No. N J 0055247

Decided: February 20, 1987.


On appeal from final orders of the New Jersey Department of Environmental Protection.

Pressler, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.


[216 NJSuper Page 4] These are consolidated appeals by the Ironbound Committee Against Toxic Waste and seven named individuals from the issuance of four permits by the Department of Environmental Protection (DEP) authorizing respondent American Ref-Fuel Company (Ref-Fuel) to construct a resource recovery facility in the City of Newark.*fn1 Although appellants purport to appeal from the issuance of four permits,*fn2 only two are actually challenged. More specifically, appellants attack the action of the DEP in issuing an Air Pollution Control Permit and a Solid Waste Permit. Our thorough review of appellants' brief reveals

no specific challenge to the DEP's issuance of a NJPDES Permit*fn3 or a Water Supply Allocation Permit.*fn4

Although ambiguously phrased, appellants advance one substantive and four procedural arguments in support of their claim that the permits were issued unlawfully. Substantively, appellants challenge the Air Pollution Control Permit on the basis that the emission limitation for particulate matter is not sufficiently stringent and that the applicable regulatory provisions obliged the DEP to require the use of more advanced anti-pollutant equipment. Procedurally, appellants argue that the DEP acted improperly by prematurely issuing the Solid Waste Permit. They claim that prior to issuance of the permit the DEP should have required Ref-Fuel to submit a full disclosure statement and background review check of all the company's principals. Appellants also assert that the permit was issued improperly because Ref-Fuel failed to designate a back-up residual landfill. They further contend that before issuing the permit the DEP was required to comply with the legislative directive set forth in N.J.S.A. 13:1E-168a(2) which mandates the promulgation of rules and regulations providing for state-of-the-art air emission technology for resource recovery facilities. Finally, appellants argue that the DEP improperly obtained and used technical information not available at the time of the public hearings thereby precluding meaningful comment and review by interested citizens and groups.

We have carefully reviewed the record and find no merit in any of the contentions advanced. We are thoroughly convinced that the DEP complied meticulously with all federal and state statutory and regulatory provisions. We are also entirely satisfied that the factual findings and conclusions reached by

the DEP are amply supported by substantial evidence present in the record and that the agency did not act in an arbitrary or capricious manner. We affirm.

The salient facts are not in dispute and are essentially a matter of public record. In July 1979, the Essex County Board of Freeholders adopted a solid waste management plan which provided for the development of a resource recovery facility. The plan was subsequently amended to reflect an agreement between the Essex County Division of Solid Waste Management and the Industrial Development Department of the Port Authority which, among other things, designated Blanchard Street in Newark as the site for the proposed facility. Both the original plan and the modifications were approved by the DEP and Ref-Fuel was ultimately selected through the competitive bidding process to construct the facility.

On December 14, 1983, Ref-Fuel submitted to the Division of Waste Management a "solid waste facility application package" including a comprehensive engineering design and environmental impact statement. Following its review of the documents submitted, the Division issued draft permits for operation of the proposed facility and scheduled a public hearing. The DEP gave notice that public comments would be accepted between November 17, 1984 and January 18, 1985 and that a hearing would be conducted on December 17, 1984. The notice stated that the DEP would consider all comments presented and would issue responses to all significant issues raised. The notice also apprised the public of the locations where copies of the draft permits and supporting applications could be obtained. So too, the DEP promised to furnish additional information upon request.

We need not recount specifically what transpired at the public hearings. Suffice it to say, the hearings took place over the course of several days. Seventy individuals testified and approximately one thousand people attended.

After the conclusion of the hearings and the public comment period, the DEP forwarded all materials to three consultants it had retained for their review and response. Among the factors to be reviewed were the combustion system design especially with regard to dioxin emissions, risk assessments for selected air contaminants which the proposed facility would emit and the advantages and disadvantages of alternative air pollution control systems.

Following receipt of the reports submitted by the consultants, the DEP's hearing officer issued his final recommendations. The hearing officer's findings and conclusions are set forth in an extremely comprehensive report. The hearing officer recommended that the DEP approve the permits contingent upon Ref-Fuel's acceptance of several revisions, modifications and additions. These changes included (1) increased monitoring of emission data and periodic transmission of such information to the DEP, (2) reduction of the "allowable emission concentration of particulate matter from 0.02 to 0.015 grains per dry standard cubic foot of stack gas" and (3) reduction of the duration of the registration from ten to five years. These conditions were ultimately incorporated in the DEP's final permit approvals which became effective on December 30, 1985. These appeals followed.


We first address appellants' argument that the emission limitations set forth in the DEP's approval is not sufficiently stringent. Appellants contend that anti-pollutant equipment utilized in other states and municipalities has resulted in lower emission rates than that allowed by the permit issued by the DEP. Appellants assert that the DEP acted in an arbitrary and capricious manner in not requiring Ref-Fuel to employ advanced technology and in allowing a higher emission rate than that which can otherwise be achieved.

A brief description of the federal and state statutory and regulatory provisions is necessary for a full understanding of the issues presented. The federal Clean Air Act, 42 U.S.C. § 7401 et seq., divides regions into attainment and nonattainment areas. 42 U.S.C. § 7407. Those areas with pollutant levels at or below national air quality standards as defined by the federal Act constitute "attainment areas." 42 U.S.C. § 7407. Those with pollutant levels above the maximum air quality standards are "nonattainment areas." 42 U.S.C. § 7407 and § 7501(2).

A facility which is located in an attainment area must employ an emission limitation which reflects the "best available control technology." (BACT). BACT is defined in the federal Act as:

[a]n emission limitation based on the maximum degree of reduction of each pollutant . . . which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques. . . . [42 U.S.C. § 7479(3)].

BACT does not require any particular engineering design. Rather, it mandates an achievable limitation taking into account certain factors enumerated in the regulations. Significantly, BACT involves a balancing of economic and technological considerations.

If, on the other hand, the facility is located in a nonattainment area, far more stringent standards are applied. Specifically, the applicant must use technology capable of achieving the "lowest available ...

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