On appeal from a Final Decision of the New Jersey Department of Environmental Protection, 0053350.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Holston, Jr.
The Sussex County Municipal Utilities Authority (SCMUA) appeals from the denial by the New Jersey Department of Environmental Protection (DEP) of its application for a modification of its New Jersey Pollutant Discharge Elimination System (NJPDES) permit with respect to the concentration of phosphorus allowed (phosphorus effluent limitations) in SCMUA's permitted discharges into the Wallkill River. SCMUA also appeals from the DEP's denial of its request for a stay of its phosphorus effluent limitations.
The DEP based its denials upon SCMUA's failure to support its application with a phosphorus evaluation study conducted pursuant to an approved work plan, as required by the DEP's Technical Manual for Phosphorus Evaluations for NJPDES Discharge to Surface Water Permits (Manual). SCMUA submitted a phosphorus evaluation study in support of its application, but the DEP refused to consider it because it was not conducted in accordance with a work plan pre-approved by the DEP. SCMUA's principal argument is that the DEP's application of the Manual constitutes illegal rule-making and was not a proper basis for the DEP to refuse to consider its study. SCMUA further argues that the statute authorizing DEP technical manuals does not apply to adoption of narrative criteria implementation procedures and instream numeric water quality requirements, such as those included in the Manual. SCMUA also argues that, because the Manual was adopted after issuance to it of the permit sought to be modified, the Manual was inapplicable to its permit modification application, that its study substantially complied with the Manual requirements, and that the DEP's refusal to consider its study and the denial of its application was arbitrary and capricious, as was the denial by the DEP of its stay request.
We conclude that the DEP acted within the scope of its authority in requiring SCMUA to obtain pre-approval of its work plan by which its phosphorus evaluation study would be conducted. This conclusion makes it unnecessary to address in detail SCMUA's remaining arguments. We find no impropriety in the DEP's denial of SCMUA's stay request. Accordingly, we affirm.
SCMUA, classified as a major discharger by the DEP, operates a wastewater treatment facility in Hardyston Township, Sussex County. It is allowed to discharge between 2.5 and 3.0 million gallons per day (MGD) of disinfected domestic wastewater into the Wallkill River. The affected portion of the Wallkill is classified as a Freshwater 2, Non-Trout river, pursuant to N.J.A.C. 7:9B-1.15(g).
The DEP issued a draft surface water permit to SCMUA on April 17, 2003. With respect to phosphorus, a nutrient which, in excess, stimulates algae growth, the draft permit provided that "based on a reasonable potential analysis" of the effluent limitations of phosphorus, "cause exists to exceed the instream water quality criteria of 0.1 mg/L [milligram/liter]." For a period of fifty-nine months, the permit would allow SCMUA an interim monthly average phosphorus effluent limitation of 1.0 mg/L per 2.5 MGD discharge, and upon expiration of the fifty- nine month period, final monthly average phosphorus effluent limitations of .22 mg/L per 2.5 MGD discharge and .2 mg/L per 3.0 MGD discharge, respectively. The final permit was issued on June 18, 2003, effective August 1, 2003, with an expiration date of July 31, 2008.
In that final permit, the DEP responded to written comments submitted by SCMUA Administrator John Hatzelis and by SCMUA Chief Engineer Thomas Varro. SCMUA complained about the "new more restrictive total phosphorous effluent limitations":*fn1
These new limitations, however, are not based upon any change in underlying law or water quality study. DEP, without undertaking applicable rulemaking pertaining to the imposition of total phosphorous requirements ignores its own guidance, water quality management plans and TMDL listing decisions, as well as its historical interpretation of applicable law and, instead, proposed to impose these more stringent limitations upon SCMUA.
In this case, cause to exceed the 0.2 mg/l limit exists. The Department has provided 59 months for the permittee to come into compliance with the new phosphorus limitation. During this time, the permittee may conduct studies to determine if phosphorus is the limiting nutrient and to show that the discharge does not affect the designated uses of the river (see N.J.A.C. 7:9B-1.14(c)5).
Therefore, no change has been made to the Final Permit. In response to SCMUA's comment that "DEP Water Quality Determinations Indicate Phosphorus Is Not a Problem and Therefore No Criteria Exceedance Has Occurred," the DEP stated:
If the permittee has a study of the Wallkill River which proves that Phosphorus is not a limiting nutrient and Phosphorus is discharged at levels which results in no use impairment to the waterbody and if that document addresses all of the requirements of the Department's guidance document for phosphorus evaluation, the recognized study can then be submitted to this Bureau for review by the appropriate staff. The Department will review the work plan and final report to determine if the study was conducted according to Department protocol. If the workplan and subsequent study are acceptable to the Department, the permit will be modified accordingly. As per the permit, the permittee has a 59 month interim compliance period for Phosphorus. The workplan and final study report are to be submitted during the interim compliance period such that the Department can review the submissions and modify the phosphorus limit (if appropriate) before the 0.2 mg/L limitation becomes effective.
Allowed phosphorus concentrations reflected in the draft permit remained the same in the final permit.
In March 2003 the DEP issued the Manual. Contained in the
Foreword is the following:
This guidance manual is for use by NJPDES Discharge to Surface Water (DSW) Permittees, consultants and other interested parties who may be conducting a limiting nutrient analysis and a "render unsuitable for uses" analysis for total phosphorus, when offered these options as part of a compliance schedule contained in a Final NJPDES DSW Permit. . . .
This guidance manual is intended to address only the optional phosphorus evaluations that are specified in applicable NJPDES permits.
Under the heading "Purpose of this document," the following appears:
This manual provides the Department's technical guidance for conducting certain evaluations concerning total phosphorus (TP). These analyses are in accordance with the allowable demonstrations provided for in the Surface Water Quality Standards (SQWS) at N.J.A.C. 7:9(B)-1.14(c) to demonstrate whether or not TP is the limiting nutrient and whether or not TP otherwise renders the waters unsuitable for the designated uses. The results of such demonstrations shall be submitted to the Department for a final determination of the applicability of the TP stream criteria and a Water Quality Based Effluent Limitation (WQBEL) in accordance with the compliance schedule provided in a final NJPDES discharge permit. This document also describes the thresholds the Department will use for making the limiting nutrient and "render unsuitable" determinations, based on the data submitted by the permittees.
The Manual informs permittees that "if they elect to do so,
[they] might need to conduct several types of assessments to provide information to the [DEP]" and that "[t]he first task in a phosphorus evaluation demonstration is to determine the spatial extent of the monitoring and assessment required."
A permittee is specifically informed that:
A Quality Assurance/Work Plan, descriptive of the proposed monitoring program, must be submitted to the Department and be approved prior to commencement of any monitoring. [Emphasis in original.] Only monitoring conducted in accordance with an approved workplan will be considered. [Emphasis added.] In addition, the submitted workplan must address all areas of analysis, as identified herein. For submission of completed workplans, or guidance in designing a detailed workplan, please contact the Department's Division of Water Quality, Bureaus [sic] of Point Source Permitting.
After the permittee has obtained the Department's written concurrence with their proposed workplan, sampling and assessment may commence. Completed studies, analysis and all associated data should be submitted to the NJDEP, Division of Water Quality, Bureaus [sic] of Point Source Permitting. The Department will review the submittal and make a determination. . . .
On June 8, 2005, SCMUA submitted copies of its June 6, 2005 "Quality Assurance Sampling Plan for a Phosphorus Evaluation Study on the Wallkill River" to the DEP for a determination as to whether the "final monthly average total phosphorous permit limit of 0.2 mg/l" applies to the segment of the Wallkill River to which SCMUA's Pollution Control Facility discharges. The plan, drafted by TRC Omni Environmental Corporation (Omni), set forth proposed sampling locations, sampling protocols, monitoring parameters and a sampling schedule.
Omni began conducting the study without DEP approval of its work plan. In a December 19, 2005 letter to SCMUA's Varro, Omni's Senior Project Manager, Thomas Amidon, recounted that SCMUA had verbally authorized it to begin sampling, which Omni did from June 24 through June 28, 2005. The letter further noted that DEP representatives John Kashner and Thomas Belton first met with Amidon and SCMUA's John Nugent for a field visit on July 1, 2005. In advance of formal DEP comments, Kashner offered Amidon his oral, unofficial "draft" review, including:
2) "Extend scope of study and add one more downstream station" . . . .
3) Mr. Kashner wanted to know whether June sampling would occur next year  since it was already July 1. [When Amidon told Kashner and Belton that SCMUA] had already performed the June sampling, . . . they expressed skepticism that the June sampling would be approved because it was performed prior to having an approved Sampling Plan.
4) "The diurnal DO [dissolved oxygen] protocol requires that turbidity be monitored". . . .
5) "DO measurement by optical methods is unacceptable". . . .
6) "Permission to sample beyond the end of September is by request". . . .
The letter further stated:
TRC Omni has performed many Phosphorus Evaluation Studies with Sampling Plans that were approved by NJDEP. This Sampling Plan was not substantively different than any other of the Sampling Plans we have utilized for Phosphorus Evaluations. Based on the initial feedback we received during the site visit, we were expecting to receive a handful of relatively minor comments from NJDEP and revise the Sampling Plan accordingly. However, we did not receive any comments from NJDEP on the Sampling Plan. Mr. Kashner specifically stated that his review comments were only draft comments, and that he had yet to receive comments from Mr. Ferko in the Office of Quality Assurance. I certainly was not going to revise a Sampling Plan based on draft review comments from one NJDEP staff, particularly when I was told additional comments from other staff were forthcoming.
The main issue that emerged from the site visit was anticipated, namely that NJDEP was going to require a third downstream sampling location. We revised our sampling map accordingly, and performed the sampling in accordance with NJDEP protocols. The data collected during this study is very high quality data, as described in the Sampling Plan and Final Report. The analytical methods used are identical to those approved by NJDEP in similar stream studies. Laboratory results indicate all relevant QA/QC protocols were followed. We have no reason to believe that the data are anything other than reliable and representative, accurately reflecting instream conditions.
Nearly three weeks before Amidon's letter to Varro, Deputy Attorney General Jane F. Engel, in a December 1, 2005 letter to counsel for SCMUA, wrote that Omni's June 6, 2005 work plan had been rejected by Kashner and Belton on July 1, 2005, that they requested changes to ...