## Facts

- A private developer proposed a resource recovery (waste-to-energy) facility in Newark to process municipal solid waste and generate energy.
- The developer applied to the New Jersey Department of Environmental Protection (DEP) for multiple approvals, including an air pollution control permit and a solid-waste permit (and also NJPDES and water allocation permits).
- DEP provided public notice, accepted public comment, and conducted public hearings.
- A hearing officer recommended approval subject to revisions and conditions; DEP issued the permits incorporating conditions governing construction and operation.
- Community opponents appealed, substantively challenging the air permit’s particulate emission limits and asserting the regulations required more advanced pollution-control equipment.
- Opponents also challenged the solid-waste permit on procedural and related grounds, including alleged premature issuance without full disclosure/background review of principals, lack of a backup residual landfill for ash/residuals, failure to await legislatively directed “state-of-the-art” technology rules, and use of post-hearing technical information.

## Issues

1. Whether DEP acted arbitrarily, capriciously, or unlawfully in setting particulate emission limits and control-technology requirements in the air pollution control permit.
2. Whether DEP’s solid-waste permit was invalid due to alleged premature issuance, missing backup residual landfill designation, failure to wait for “state-of-the-art” rulemaking, or reliance on technical information obtained after the public hearings.
3. What burden and level of judicial deference apply when reviewing DEP’s technically complex permitting decisions.

## Decision

- The court affirmed DEP’s issuance of the challenged air pollution control permit and solid-waste permit.
- The court held the particulate emission limits and related technology requirements were within DEP’s discretion, consistent with applicable regulations, and supported by the administrative record.
- The court rejected claims that the solid-waste permit was unlawful based on timing of disclosure/background review, absence of a backup residual landfill designation, and the status of “state-of-the-art” rulemaking.
- The court upheld DEP’s consideration of post-hearing technical information, finding no showing of unfairness or prejudice sufficient to invalidate the permits.
- Because appellants presented no developed arguments against the NJPDES and water allocation permits, those permits remained undisturbed.

## Legal Principles

- A party challenging final agency action bears the burden to show the decision is arbitrary, capricious, unreasonable, contrary to law, or unsupported by substantial evidence.
- Courts give substantial deference to DEP’s expertise and specialized knowledge, especially where the decision turns on technical environmental and engineering judgments.
- An agency may supplement or refine the technical basis for its decision after public hearings, absent a showing that the process deprived interested persons of a fair opportunity to participate or caused material prejudice.
- Legislative directives to develop environmental technology standards do not, without clear statutory prohibition, bar an agency from issuing permits under existing regulations while rulemaking is pending.
- In permit administration, certain operational contingencies (such as residual-disposal planning) may be addressed through permit conditions and oversight rather than treated as absolute preconditions to issuance, unless law requires otherwise.

## Conclusion

The Appellate Division sustained DEP’s permitting determinations for the Newark resource recovery facility, holding that challengers did not carry their burden to show legal error or arbitrary action and that DEP’s technically grounded judgments and procedures, including post-hearing technical review, warranted judicial deference.


In re NJPDES Permit No. NJ 0055247, 216 N.J. Super. 1, 522 A.2d 1002 (N.J. Super. Ct. App. Div. 1987)