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Sussex County Mun. Utils. Auth. v. New Jersey Dep't of Envtl. Protection

ELR Citation: 37 ELR 20158
Nos. No. A-4723-05T2, (N.J. Super. Ct. App. Div., 06/27/2007)

The court upheld a New Jersey Department of Environmental Protection denial of a utility's application for a modification to its New Jersey pollutant discharge elimination system (NJPDES) permit with respect to the concentration of phosphorus allowed in the utility's permitted discharges into the Wallkill River. The agency based its denial on the utility's failure to support its application with a phosphorus evaluation study conducted pursuant to an approved work plan, as required by the agency's Technical Manual for Phosphorus Evaluations for NJPDES Discharge to Surface Water Permits (Manual). The utility submitted a phosphorus evaluation study in support of its application, but the agency refused to consider it because it was not conducted in accordance with a work plan pre-approved by the agency. The utility argued that the agency's application of the Manual constitutes illegal rulemaking and was not a proper basis for the agency to refuse to consider its study. The agency, however, acted within the scope of its authority in requiring the utility to obtain pre-approval of its work plan. The Manual's requirement for submission to the agency for pre-approval of work plans for phosphorus studies need not be embodied in a formal rule because this is nothing more than a logical extension of the agency's existing authority contained in statutory enactments and regulations. Thus, even without the Manual, the agency could reasonably require pre-approval of a work plan. In addition, the court found no impropriety in the agency's denial of the utility's request for a stay of its phosphorus effluent limitations.