IN RE ADOPTION OF N.J.A.C. 7:1B

N

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3465-12T2

IN RE ADOPTION OF N.J.A.C. 7:1B

July 17, 2014

Argued June 17, 2014 Decided

 
Before Judges Parrillo and Alvarez.

On appeal from the New Jersey Department of Environmental Protection, Docket No. 03-11-02.

Appellant William P. Minervini argued the cause pro se.

Ryan A. Benson, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (John J. Hoffman, Acting Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Mr. Benson, on the brief).

PER CURIAM

William P. Minervini appeals the Department of Environmental Protection's (DEP or the agency) adoption of regulations entitled "Waiver of Department Rules" (waiver rules), N.J.A.C. 7:1B-1.1 to -2.4. Minervini contends that the DEP's failure to respond to eleven of his thirty-three numbered comments, some of which contained sub-parts, was a fatal flaw in the process of adoption. We conclude that the DEP sufficiently complied with the Administrative Procedures Act (APA), N.J.S.A. 52:14B-1 to -15, in its responses to Minervini's comments, and that the agency's authority to promulgate the waiver rules therefore withstands Minervini's appeal.

Over 528 persons submitted written or oral comments on the waiver rules, including Minervini, many of whom opposed the proposal. See In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100 (App. Div.), certif. denied, 216 N.J. 363 (2013). To date, the waiver rules have survived all challenges. See id. at 140.1

In the interest of completeness, we reiterate each of the comments Minervini asserts were ignored, and the agency's response, in a separate attachment to this opinion described as "Schedule A."

The DEP does not dispute the timeliness of the appeal or Minervini's standing. The issues he raises for our consideration are:

POINT I:

THIS APPEAL IS TIMELY BROUGHT BY A PERSON WITH STANDING TO APPEAL.

A. Time to Commence Proceeding

B. Standing

POINT II:

THE WAIVER RULES ARE INVALID BECAUSE THEY WERE NOT ADOPTED IN SUBSTANTIAL COMPLIANCE WITH THE ADMINISTRATIVE PROCEDURE ACT (APA)

A. This Appeal Challenges the Waiver Rules on Strictly APA-Based Legal Issues Which the Court Should Address De Novo and for Which the Court Owes No Deference to the DEP Interpretation of the APA

B. The Waiver Rules Violate the APA Because DEP Did Not Summarize and Respond to Significant Portions of Appellant's Timely Submission Concerning the Proposed Rules

C. The Waiver Rules Violate the APA Because DEP Did Not Consider Fully Those Portions of Appellant's Submission

D. The Waiver Rules Violate the APA Because DEP Did Not Provide a Substantive Response to, and Did Not Consider Fully, Certain Other Significant Portions of Appellant's Timely Submission Concerning the Proposed Rules

E. Noncompliance with the Procedural Requirements of the APA Warrants Invalidation of the Waiver Rules

It is well-established that we do not overturn administrative agency action absent "a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We review agency action only to ask if it "violate[d] express or implied legislative policies," was based on findings supported by substantial evidence, "clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Thurber v. City of Burlington, 191 N.J. 487, 501 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). Finally, agency action is presumed reasonable. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006).

It is equally undisputed that the APA requires an agency to give interested persons "reasonable opportunity to submit data, views, or arguments." N.J.S.A. 52:14B-4(a)(3); see also N.J.A.C. 1:30-5.4, -5.6(a) and (b). A report must be prepared by the agency containing the agency's responses. N.J.S.A. 52:14B-4(a)(4); see also N.J.A.C. 1:30-6.1(b)(13).

The APA only requires substantial compliance with the act. See Animal Prot. League of N.J. v. N.J. Dep't of Envt'l Prot., 423 N.J. Super. 549, 575 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). Responses must be meaningful, but not necessarily made in the fashion or to the extent the person making the comment might prefer. See N.J.S.A. 52:14B-4(a). Neither does the APA mandate that suggestions be accepted, or that the agency agree with a basic premise. See Animal Prot. League, supra, 423 N.J. Super. at 574 ("Disagreement with a reasoned, supported agency determination does not give rise to an APA violation."). In this case, even where the DEP may not have specifically identified that it was responding to comments made by Minervini, it adequately addressed each and every issue he raised by responding to similar comments made by others.

Minervini does not claim to be an expert in a particular field, or have some otherwise-specialized background which gives him a springboard for attack on the responses he received. He is an interested citizen of this State, who is entitled to air his concerns regarding the adoption of the waiver rules, and receive responses regarding these concerns. But under the APA that obligation does not entitle him to more. It suffices that members of the public were heard, and their comments considered by the agency. Id. at 576-77.

We therefore deny Minervini's challenge to the waiver rules. Minervini did not meet his burden of establishing that the agency's action was arbitrary, capricious, or unreasonable.

Affirmed.

SCHEDULE A

Comment 1: Minervini requested that details regarding the development of the waiver rules proposal be made public, including the names of specific individuals and organizations outside the DEP who may have been involved, "[t]o promote transparency and accessibility in the process." The agency reply was that Minervini's concerns were sufficiently addressed in its response to comment 202, in which it described its "Stakeholder outreach" to environmental groups, a builder's association, and attorneys who regularly represented clients before the agency, and the meetings that ensued. See 44 N.J.R. 981(b), 1018.

Comment 2: Minervini inquired regarding the extent DEP relied upon the waiver process promulgated by other states, suggesting it consider examining Florida and Iowa's procedures. In addressing public comments 370-71, 373-82, 389-92, the DEP notes that it summarized its intent to prominently post all waiver applications under consideration separately from web pages regarding its rules and detailed the information it intended to provide to the public regarding the implementation of the waiver rules. Thus the DEP claimed that even if it did not specifically mention Minervini's suggestion that it look to other jurisdictions, by advising him of the processes they intended to employ, their obligation to respond was sufficiently met. 44 N.J.R. 1040, 1041, and 1042.

Comment 4: In subsection a, Minervini asks if disputed material facts between the DEP and an applicant seeking a waiver would constitute a "contested case." In subsection b, he asks whether a determination regarding a waiver request would be subject to review by New Jersey's courts. In response to comments 85-88, comments 90-107, and comment 404, the agency stated that the same adjudicative processes would be available for disputes concerning the waiver rules as are currently in effect. 44 N.J.R. 1004; 44 N.J.R. 1007; 44 N.J.R. 1044.

Comment 5: Minervini claimed that the core mission of the DEP "differ[ed] significantly in some respects from the mission description in existing N.J.A.C. 7:1-1(a)." He suggested in order to "eliminate the differences and set forth more properly the Department's core mission," that the DEP should:

revise N.J.A.C. 7:1-1.1(a) and N.J.A.C. 7:1B-1.1(a) and -2.2(a)(7) to describe the Department's core mission as "to maintain, protect, and enhance the air, waters, land, and natural and historic resources of the State to ensure continued public benefit, and to protect the public health, safety, and welfare, and the environment."

The DEP responded to comments 146-48 that it considered its enabling legislation, core mission, and the statement of the agency's purpose in the waiver rules to be consistent. 44 N.J.R. 1011.

Comment 6: Minervini suggested that the DEP revise N.J.A.C. 7:1B-1.1 so that an applicant would be required to pursue an already existing specific waiver first, before being permitted to file a request under the waiver rules. The agency response was that the Department considered "a single waiver rule of general application" to be a more efficacious solution than specific waivers because it

serve[d] an important regulatory purpose by providing the Department with a flexible and reasonable mechanism for resolving four limited circumstances that are not addressed by the Department's existing rules. . . . The Department believes that this process, coupled with the substantive standards, decision-making criteria, and limitations in the rules and the posting of notice of waiver decisions and information pursuant to these rules, will result in coherent, principled, and consistent consideration and disposition of waiver applications.

[ 44 N.J.R. 1015 (response to comments 177-81).]

Comment 7b: Minervini inquired if under N.J.S.A. 13:1D-9.q, which enables the DEP to "contract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act[,]" the Department could delegate the authority to approve a waiver request to another department. In response to comments 222-23, the DEP stated that the waiver rules did not authorize any other entity, private or otherwise, to issue a waiver. 44 N.J.R. 1020.

Comment 8: Minervini questioned the agency's definition of "department rule" and suggested a revision to Title 7 of the Administrative Code that would clarify that the DEP did not have the authority to waive the rules of other commissions, such as the Pinelands Commission. The agency response to comments 205-07 was that it did not have the authority through the waiver rules to authorize waivers of rules promulgated by the Pinelands Commission at N.J.A.C. 7:50. 44 N.J.R. 1019. It also stated that with regard to the Highlands Commission, "many specific requirements and duties of the Department with respect to permitting are set forth in the Highlands Water Protection and Planning Act at N.J.S.A. 13:20-33 and [-]34," and therefore could not be waived under N.J.A.C. 7:1B-2.1(b)1. Ibid. It also noted that if a provision under the DEP's Highlands Water Protection and Planning Act rules, N.J.A.C. 7:38, "is not excluded from waiver under N.J.A.C. 7:1B-2.1(b), the provision could potentially be the subject of a waiver, if all other limits and conditions in the waiver rules are met." Ibid.

Comment 11d: Minervini asked about the interplay between federal or state regulations requiring that a particular criterion be met, and whether the waiver rules would permit waiver under those circumstances. In response to comments 177-81, and 322, the agency stated that it cannot waive a requirement "imposed by [f]ederal or [s]tate statute or [f]ederal regulation unless the applicable statute or [f]ederal regulation itself authorizes waiver." 44 N.J.R. 1015, 44 N.J.R. 1033.

Comment 20: Minervini considered the proposed waiver rules to be "seriously incomplete" because of defects he believed were built into the notice requirement, specifically, that the value of any notice of the grant of a waiver would be lost if time elapses "after the event that is the subject of the notice." Minervini suggested that the waiver rules "be revised to require that notice be published in the DEP Bulletin no more than [thirty] days after the event that is the subject of the notice." He also asserted that there was an inconsistency between the proposal summary found at 43 N.J.R. 474 and "the text of proposed N.J.A.C. 7:1B-2.3(b)." The DEP did not directly respond to Minervini's suggestion regarding a thirty-day cap, merely stating in response to comments 373-82, in general terms, that adequate opportunity for public comment will be a consideration in the review of a waiver request, and that N.J.A.C. 7:1B-2.2(a)1 mandates the DEP "consider whether the public has had sufficient notice of the waiver in accordance with applicable rules." 44 N.J.R. 1041. If public notice required by the applicable program rules is not provided by the waiver applicant, this criterion will not have been met, which will factor negatively in the Department's consideration of the waiver application." Ibid. The response also directed interested persons to the Department's responses to comments 11-15, 24, 25, 31, 32, and 58. Ibid. Furthermore, as noted in response to public comments 370 and 371, the Department intended to publish notice of the decision to consider a waiver, and to post notice of its decision. Because waiver information will be posted, "interested persons will have ready access to it and may not need to pursue an [OPRA] request." 44 N.J.R. 1040.

Comment 26: Minervini suggested that the waiver rules include a provision making any approval effective only after public notification. In response to public comment 394, the DEP stated that in most circumstances, the effective date of a waiver will track the requirements of the rule being waived, however, there are waivers that only become effective upon the occurrence of a certain event or activity, the date of which is unknown. 44 N.J.R. 1043.

1 For a full summary of the history of adoption see N.J.A.C., supra, 431 N.J. Super. at 108-10, 112-14.