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12 N.J.A.R. 289

Vi-Concrete Co. v. Environmental Protection, Dept. of
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Citation: 12 N.J.A.R. 289
Decision Date: 1986
Agency: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Synopsis: Respondent issued a Pollution Discharge Elimination System permit to petitioner for property which petitioner had purchased. Petitioner had not requested the permit, which requires the installation of wells to test for potential pollution hazards. Petitioner requested a hearing and the matter was transmitted to the Office of Adminis- trative Law. The parties filed cross motions for summary decision. The admin- istrative law judge assigned to the case concluded that disputed facts were crucial to a fair determination and denied both motions. The judge found that respondent had the authority to issue a permit unilaterally without an application. However, absent a regulation requiring monitoring of closed landfills, respondent was required to prove that monitoring of this particular landfill was necessary. The landfill on petitioner's property was closed. Upon interlocutory review, this decision was affirmed in part and rejected in part by the Commissioner of the Department of En- vironmental Protection. The Commissioner agreed that the Depart- ment had authority to issue permits without applications. However, the Commissioner found that the Department could issue permits regardless of whether there was evidence of discharge. In the absence of a specific exemption, all landfills--open or closed--were subject to the Water Pollution Control Act. Accordingly, the Commissioner granted respondent's motion for summary decision. The Appellate Division affirmed. The New Jersey Supreme Court reversed, holding that a discharge permit could be issued to the owner of a closed landfill, but only if the Department of En- vironmental Protection had substantial evidence that the landfill was actually discharging pollutants. David C. Patterson, Esq., for petitioner (Maressa, Goldstein, Birsner, Patterson and Drinkwater, attorneys) Colleen Ma!!oy, Deputy Attorney General, for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney)