Clean Ocean Action

Clean Ocean Advocate, February 2006

COA Case for Appeal Rejected, but NJDEP Rapped

     A significant source of concern is NJ's wastewater treatment plants that are permitted to discharge 64 billion gallons of effluent per year into the sea.  COA has been working to reduce pollution from these pipes by urging the NJ Department of Environmental Protection (DEP) to place reasonable restrictions on permits -- to no avail.  To further our cause, COA challenged DEP's permit approval for the Asbury Park Wastewater Treatment Facility.  Absurdly, the official process to appeal is to ask DEP to admit they may have been wrong.  Rutgers Environmental Law Clinic (RELC) represented our case, and not surprisingly, DEP flatly denied our request. 


     With that, RELC took the case to court where it wound its way through the system for several years.  At stake was the right to a "third party appeal."  In other words, if DEP issues a permit that is not good for the ocean, and our only option is to appeal to DEP, how is that "due process?" 


     Sadly, on January 11, 2006, the NJ Superior Court unanimously decided that COA’s request to a third party hearing was properly denied.  The Court held that “it is clear that there are no adjudicative facts in issue.”


     Although COA is disappointed and strongly disagrees, as there were significant scientific flaws in the permit, the decision does move the process forward.  For one, it provides guidance that can be used in the future to better frame the scientific and legal issues.  Importantly, the Court also gave a good rap across DEP’s knuckles.  The Court stated that DEP can no longer simply deny a hearing request saying that DEP “must explain the reasons why the DEP Commissioner has concluded that a third party’s hearing request does not meet the statutory standard for a hearing.”


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