On appeal from the New Jersey Department of Environmental Protection.
Before Judges Shebell, Skillman and Wallace.
Appellants Delaware Valley Concerned Citizens, Diane Burke and Elizabeth Crane appeal from an order of the Department of Environmental Protection (DEP) issuing an air pollution control permit to respondent Crown/Vista Energy Project. Respondent intends to construct a 362 megawatt coal-fueled power plant in West Deptford, New Jersey for the sale of electricity to Jersey Central Power and Light (JCP&L) and others. On February 28, 1992, respondent submitted an application for a state air pollution control permit and on October 1, 1993, DEP issued an air pollution control permit. Appellants contend on appeal that: (1) the permit does not comply with the Clean Air Act (Act) Amendments of 1990; (2) the DEP regulations do not establish any criteria or standards for determining when an application is complete; (3) there is no evidence in the record to support DEP's determination of the quantity of emissions of volatile organic compounds (VOC); and (4) respondent failed to obtain a certificate of need pursuant to the Electric Facility Need Assessment Act (EFNA). We affirm.
Respondent proposed to construct a large, complex independent producing facility consisting of two 1789 million BTU per hour heat input boilers; two 181 megawatt capacity steam-turbo generator sets; a track hopper; a crusher house; a coal yard storage enclosure; two coal silos; two recycle ash silos; two disposal ash silos; two submerged chain conveyors; two lime storage silos; a lime car unloading station; two cooling towers; two ammonia storage tanks; two ammonia removal towers; an inactive coal pile; a car thaw shed; two disposal ash vacuum pumps; and associated auxiliary equipment needed to operate the facility. The facility will have the capacity to generate approximately 2.59 million pounds of steam per hour, and will produce 362 megawatts of electrical power to be sold to JCP&L and other nearby users. The fuels to be used at the facility will be coal containing a maximum of 1.7% sulfur, with natural gas used for start up only. The facility will have a single 450 foot stack and will be located at a site on Paradise Road in West Deptford Township, Gloucester County.
The facility will have several air pollution control devices installed. These include: advanced combustion controls, including a selective catalytic reduction system with ammonia injection, to minimize carbon monoxide and nitrogen oxide emissions; and a flue gas desulfurization system to remove sulfur dioxide from the burning coal with a minimum efficiency of 93%, which will also remove particulate matter formed during the coal combustion process. A baghouse, which is designed to remove at least 99.6% of the particulate in the flue gas, will be installed for each boiler. DEP determined that the proposed air pollution control devices represent the best available control technology (BACT) for a pulverized coal boiler facility.
On February 28, 1992, respondent submitted an application for a state air pollution control permit.*fn1 On October 21, 1992, DEP declared the application to be complete for the purpose of commencing technical review. On March 4, 1993, DEP issued a draft permit to respondent. The public comment period ran from March 11, 1993, until April 21, 1993. A public hearing was held on April 13, 1993. On October 1, 1993, DEP issued an air pollution control permit. On the same date, DEP issued its written response to the comments received from the public as well as a hearing officer's report. This appeal followed.
The scope of judicial review of an administrative agency's decision is narrowly limited. In reviewing decisions of administrative agencies "a presumption of reasonableness attaches to the actions of an administrative agency...." Smith v. Ricci, 89 N.J. 514, 525, 446 A.2d 501 (citation omitted), appeal dismissed sub nom. Smith v. Brandt, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982). We will not overturn the decision of an administrative agency unless it is arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80, 410 A.2d 686 (1980). Further, we are not to usurp administrative policy decisions or to substitute our judgment for that of the agency. See Texter v. Dep't of Human Services, 88 N.J. 376, 382, 443 A.2d 178 (1982). Of course, we must make certain that the administrative agency acts within its legislatively delegated authority and that it adheres to its duly promulgated rules and regulations. However, we are obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs. See Barone v. Dep't of Human Services, 210 N.J. Super. 276, 285, 509 A.2d 786 (App. Div. 1986), aff'd, 107 N.J. 355, 526 A.2d 1055 (1987).
Appellants contend that the decision of DEP to issue an air pollution control permit for the Crown/Vista facility should be reversed because DEP reviewed the project under pre-1990 Clean Air Act regulations. Specifically appellants argue that the issuance of the permit was contrary to the 1990 amendments to the Act, 42 U.S.C.A. § 7511a (the 1990 amendments), in that the proposed facility will emit more than twenty-five tons per year of volatile organic chemicals.
Respondent and DEP disagree with this position and urge that DEP's determination to grandfather respondent's application and to use the then-existing rules was consistent with official transitional guidance issued by the United States Environmental Protection Agency (EPA) and DEP's regulations.
Some background is required to better understand this argument. Under the Act, states are required to adopt measures to reduce pollutants to the levels mandated by the 1990 amendments. 42 U.S.C.A. § 7511a. The Act divides regions into attainment and non-attainment areas for achievement of the improvement of air quality by complying with national primary and secondary air quality standards (NAAQS). 42 U.S.C.A. § 7407. Those areas with pollutant levels at or below national air quality standards as defined by the Act constitute attainment areas; those with pollutant levels above the maximum air quality standards are non-attainment areas. 42 U.S.C.A. § 7407 and § 7501(2). Where a facility is located in an non-attainment area, the applicant must use technology capable of achieving the "lowest available emission rate" (LAER), as defined by the Act. 42 U.S.C.A. § 7501(3). Because New Jersey has a program that is essentially equivalent to or more stringent than the federal regulatory scheme, it has received full authorization from the EPA to apply its standards in both attainment and non-attainment areas. Matter of Pennsauken Solid Waste Management Auth., 238 N.J. Super. 233, 249, 569 A.2d 826 (App. Div. 1990).
In addition, under the Act each state must develop, subject to EPA approval, a state implementation plan (SIP) to implement, maintain and enforce the NAAQS for each regulated pollutant, including ozone. 42 U.S.C.A. § 7410. Regulations adopted in order to achieve compliance with NAAQS are included within a state's SIP; the EPA is the ultimate approval authority for SIP submissions; and no state SIP is effective unless and until EPA grants approval. 42 U.S.C.A. § 7410.
Under the 1990 amendments most of New Jersey, including Gloucester County, was classified as a severe area for ozone. 40 C.F.R. § 81.331 (1991). As a severe area, New Jersey is required to make extensive submissions to the EPA, including an amendment to its SIP. New source emissions are to be reduced to compensate for greater emissions from other sources. These requirements apply to sources that emit, or have the potential to emit, at least twenty-five tons per year of VOC, a primary cause of ozone. 42 U.S.C.A. § 7511a(d).
Prior to the 1990 amendments the level of permitted VOC emissions had been fifty tons per year, see 40 C.F.R. § 52 (1981), which level had been included in regulations adopted by DEP and in New Jersey's approved ozone SIP. 17 N.J.R. 277 (February 4, 1985). The 1990 amendments required that the New Jersey SIP be revised over the ensuing two years to provide for strategies that will result in attainment of NAAQS by the new statutory deadlines. 42 U.S.C.A. § 7511a(d)(1). The revised SIP must provide that a permit is required for the construction and operation of new or modified major stationary sources anywhere in the non-attainment area. 42 U.S.C.A. § 7502(c)(5). DEP was required to submit to EPA a revised SIP including all necessary implementing regulations by November 15, 1992. 42 U.S.C.A. § 7511a(d) and § 7502(b).
The Act also included a savings clause which provides:
Any provision of any applicable implementation plan that was approved or promulgated by the Administrator pursuant to this section as in effect before November 15, 1990 [the date of the enactment of the Clean Air Act Amendments of 1990] shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to ...