New Jersey Law

NJ Appeals Court addresses permits for combined sewer overflows.

The Appellate Division recently handed down an opinion in In re Petition to Revoke Statewide General CSO Permit. In that case, a group of private environmental watchdog groups brought suit to force the NJDEP to cancel certain Combined Sewer Overflow (CSO) general permits issued to municipalities with combined sewer systems. In 1994, the USEPA issued a national control policy for CSOs, which created a framework for controlling CSO discharges through the use of permits. This policy provided what are known as the “Nine Minimum Controls” aimed at reducing the prevalence and impacts of CSOs without necessitating major construction or significant engineering studies. In 2004, NJDEP issued a General CSO Permit to affected municipalities in accordance with these Nine Minimum Controls, which would allow those municipalities to operate their sewer systems and to discharge CSOs when necessary. The General Permit went into effect on August 1, 2004, and was set to lapse on July 31, 2009. However, prior to the expiration date, the affected municipalities requested an administrative extension, which, under N.J.A.C. 7:14-2.8(a), triggers a continuation of that permit’s effect until such a time as the extension is either granted or denied. Accordingly, the 2004 permit remains in effect. On April 15, 2011, the plaintiff environmental groups filed a written request that the NJDEP revoke and replace the General Permit with individualized permits involving tighter controls. On September 15, 2011, NJDEP issued its final decision denying appellants’ request that the General Permit be revoked and reissued with conditions, stating that it did “not agree that this existing General Permit is inconsistent with State or federal law.” Further, revocation was not necessary because NJDEP “intend[ed] to reissue the existing general permit with revised conditions to reflect the current status of the compliance with the nine minimum controls and Long Term Control Plan requirements.” This appeal followed. After the notice of appeal was filed, NJDEP advised that its plans had changed with regard to the General Permit. Specifically, rather than reissuing a new General Permit, it would replace it with individual permits issued to each CSO owner, and to modify or renew existing individual permits to sewerage treatment plants that receive sewer flows. The parties agreed that CSOs are a problem and that changes need to be made to the way the municipalities and sewer treatment plants which discharge them should be regulated, but they differed as to how that should occur. The environmental group plaintiffs argued that the General Permit must be immediately revoked and simultaneously reissued, or replaced with individual permits, with a variety of new conditions to address their concerns. NJDEP, on the other hand, argued that it would be a waste of time and resources to prosecute a revocation action against each of the affected municipalities when it was already in the process of issuing new individual permits to replace the disputed General Permit. The court noted that N.J.A.C. 7:14A-16.6(a), which sets forth the valid “causes for revocation,” specifically states that the conditions therein are “causes for suspending or revoking a permit during its term.” On the other hand, the General Permit at issue had expired and was on administrative extension, under which circumstances N.J.A.C. 7:14A-2.8 applies. That provision gives NJDEP a variety of options, including revocation or replacement of the extended permit. Accordingly, NJDEP’s action under these circumstances was fully supported by these regulatory provisions. Further, the court agreed that “it makes little practical sense to initiate a costly and time-consuming revocation process against twenty-one municipalities when the General permit has expired and is on an administrative extension.” Instead, “[b]y focusing on reissuing new individual permits, with more stringent conditions, DEP will make better use of its scarce resources and reach the same end result now sought by appellants.” Ultimately, “there is simply no need for DEP to first revoke the General Permit in order to issue the new individual permits[;] [i]t may simply propose and issue the new permits.” Finally, because the affected municipalities were not parties to the present appeal, and it did not even appear that they were notified of the request to revoke the General Permit, the court would be unable to grant the requested relief in the first instance. “No permit can be revoked unless each permittee is given the opportunity to request a contested case hearing concerning the proposed revocation.” DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department. The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.