On appeal from a final decision of the New Jersey Department of Environmental Protection, WEN NJ0024708.
Before Judges A. A. Rodríguez, Collester and
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 27, 2001
In this appeal we reject the contention by a local sewerage treatment authority that the Sewerage Authority Law (SAL), N.J.S.A. 40:14A-1 to -37, precludes regulation by the Department of Environmental Protection (DEP), and that, therefore, the DEP Commissioner did not err by failing to recognize the authority's immunity from the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -60, and DEP regulation.
Respondent, Bayshore Regional Sewerage Authority (Bayshore), appeals from the DEP Commissioner's final decision that affirmed the DEP's denial of Bayshore's request for a force majeure exemption*fn1 and the DEP's imposition of a $50,000 administrative penalty for Bayshore's effluent discharge violations of the WPCA, and an Administrative Consent Order. We affirm.
The salient facts can be summarized as follows. Bayshore operates a sewage treatment plant in Union Beach Borough. The DEP issued Bayshore a Pollutant Discharge Elimination System Discharge to Surface Water (NJDEPS) Permit. This permit allows Bayshore to discharge treated pollutants into the State's waters up to certain specified levels. Such permits are authorized by the WPCA and the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1999).
Pursuant to these permits, Bayshore acts as a delegated authority and, as such, is required to issue Industrial User permits to any indirect users of its facility and to regulate their use. There are three facilities in Bayshore's service area which operate industrial pretreatment plants. These plants discharge pretreated wastewater to Bayshore. Bayshore has the authority to reject wastes and to terminate its services altogether if these facilities do not pretreat their wastewater properly.
In 1991, based on outstanding violations, the DEP and Bayshore entered into an Administrative Consent Order which provided, among other things, that: (1) Bayshore had a responsibility for regulating its users; (2) Bayshore was subject to stipulated penalties of $5,000 per effluent violation; and (3) a force majeure clause. The force majeure clause required Bayshore to notify the DEP in writing, within seven calendar days, of any delay or anticipated delay in the achievement of any provision in the Administrative Consent Order. Such notification would provide Bayshore with a defense to any effluent violations.
In 1994, the discharge monitoring reports submitted by Bayshore, for the period of August 19, 1994 to September 1994, revealed that Bayshore had exceeded the effluent limitations on ten occasions. As a result, the DEP issued a notice of violation to Bayshore.
In response, Bayshore submitted a force majeure request, conceding that it "had exceeded all parameters for total suspended solids due to a persistent foam which we feel is caused by an organic oil emulsion which has plagued our plant since the middle of July, and suddenly disappeared on the weekend of September 24 and 25." Bayshore detailed its efforts to eliminate the foam. The letter explained that one of its indirect users, a plant owned by International Flavors and Fragrances (IFF), had reported having "problems" with its pretreatment of wastewater, namely high levels of chemical oxygen demands. When IFF turned off its carbon filters, Bayshore noticed that "the foam came back heavier than it had been." In an earlier letter to the DEP, Bayshore also stated that its problems with foam "coincide[d] with problems at IFF Manufacturing and their use of their carbon filters. When in use, foam subsided; when not, foam increased."
The DEP requested further information to support Bayshore's force majeure request, asking for a "detailed description as to the processes that Bayshore undertook to try to determine possible outside sources of the upset." Bayshore submitted additional information, including a chronological order of activities and plant upset.
The DEP denied Bayshore's request for force majeure relief for the period of August to September 1994 and issued a demand letter for stipulated penalties in the amount of $50,000. The DEP explained that Bayshore's delay in initiating an outside or "upstream" investigation of the excessive foaming disqualified it from relief. The DEP did, however, grant Bayshore force majeure relief for effluent violations dating from October 1994 through February 1995 because Bayshore had initiated timely in-plant and out-of-plant investigations for those violations.
Bayshore requested reconsideration of the denial. The DEP declined reconsideration repeating its initial reasons. Bayshore responded by refusing to pay the penalties. The DEP issued a notice of civil administrative penalty assessment to Bayshore. Pursuant to ...