in-the-matter-of-adoption-of-amendments-to-the-northeast-upper-raritan ( 2014 )

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NOS. A-5266-07T3
                                             APPROVED FOR PUBLICATION
    QUALITY MANAGEMENT PLANS TO                    May 15, 2014
             Argued June 2, 2009 – Remanded July 21, 2009
             Reargued March 5, 2014 – Decided May 15, 2014
             Before Judges Grall, Waugh, and Accurso.
             On appeal from the New Jersey Department of
             Environmental Protection.
             Diane   Alexander    argued   the    cause   for
             appellants    Pequannock,    Lincoln    Park   &
             Fairfield     Sewerage    Authority,     Hanover
             Sewerage    Authority,   and    Madison-Chatham
             Joint Meeting (Maraziti, Falcon & Healey,
             L.L.P.,    attorneys;    Ms.    Alexander,    of
             counsel and on the briefs).
             Robert A. Goodsell argued the cause for
             appellant Warren Township Sewerage Authority
             (Post,    Polak,   Goodsell,    MacNeill   &
             Strauchler, P.A., attorneys; Mr. Goodsell,
             of counsel and on the briefs; Alexa E.
             Miller, on the briefs).
               Jane F. Engel, Deputy Attorney General,
               argued the cause for respondent New Jersey
               Department of Environmental Protection (John
               J.   Hoffman,   Acting   Attorney   General,
               attorney;   Melissa  H.   Raksa,   Assistant
               Attorney General, of counsel; Ms. Engel, on
               the brief).
               William R. Lundsten argued the cause for
               respondent   North  Jersey   District   Water
               Supply Commission (DeCotiis, FitzPatrick &
               Cole, LLP, attorneys; Mr. Lundsten, of
               counsel; Kevin M. Kinsella, on the brief).
          The opinion of the court was delivered by
    WAUGH, J.A.D.
          Appellants Pequannock, Lincoln Park and Fairfield Sewerage
    Authority (Two Bridges), Hanover Sewerage Authority (Hanover),
    Madison-Chatham    Joint    Meeting       (Madison-Chatham),     and    Warren
    Township Sewerage Authority (WTSA) appeal the determination of
    respondent   New   Jersey   Department      of   Environmental    Protection
    (Department), following a remand1 from this court, that it would
    be   institutionally   impracticable       for   respondent    North    Jersey
    District Water Supply Commission (North Jersey) to implement an
    as-needed-treatment program to limit the phosphorus content of
    effluent discharged into the Passaic River during the months
    between November and April.     We affirm.
      In re Adoption of Amendments to the Ne., Upper Raritan, Sussex
    Cnty. & Upper Del. Water Quality Mgmt. Plans, Nos. A-5266-07, A-
    5271-07, A-5990-07, and A-5993-07 (App. Div. July 21, 2009).
                                          2                                A-5266-07T3
         We discern the following facts and procedural history from
    the record on appeal.2
         In     2008,     the    Department       adopted    amendments        to     its
    Northeast,    Upper    Raritan,      Sussex    County,    and     Upper    Delaware
    Water     Quality    Management      Plans    (WQMPs).        Those   amendments
    established    total       maximum   daily    loads     (TMDLs)     limiting      the
    amount of phosphorus, a nutrient that contributes to the growth
    of algae, discharged into the Passaic River.                  Appellants collect
    municipal wastewater for treatment, after which they discharge
    the treated water into the Passaic River.3
         In 1987, the Department issued a special report, entitled
    "Passaic     River     Water      Quality      Management        Study,"        which
    recommended    that    a    detailed    nutrient      study    be   conducted      to
    determine the maximum amount of phosphorus that sewage treatment
    plants should be allowed to discharge into the Passaic River.
    The Department subsequently adopted interim standards for the
    phosphorus content of effluent discharged into the river and
       We incorporate by reference the more detailed factual,
    procedural, and statutory background contained in our earlier
      We note that, as of the date of oral argument, none of the
    appellants have even constructed the facilities necessary to
    treat the phosphorus level of their effluent.   The manner in
    which those facilities are constructed does not depend on the
    outcome of this appeal.
                                            3                                  A-5266-07T3
    undertook extensive studies to determine appropriate long-term
    standards.         That      process       included     studies    by     a     private
    consulting firm and a panel of academics, comments by technical
    and public advisory committees, and public hearings.                           In April
    2008, the Department adopted the WQMPs at issue in this appeal.
          Appellants filed separate appeals, challenging aspects of
    the WQMPs.       We consolidated the appeals.            Appellants argued that
    the Department was arbitrary and capricious in requiring them to
    comply with the stringent limitations on the phosphorus content
    of their effluent during times of the year when daily adherence
    to such limitations is not necessary to maintain water quality
    in   the   waterways       located     downstream       from   their     facilities,
    particularly       the    location     from     which   the    Wanaque    Reservoir,
    operated by respondent North Jersey, diverts water to replenish
    the reservoir.           Instead, they argued that the quality of water
    in the Wanaque Reservoir could be maintained adequately if the
    Department       only    required    strict      compliance     from     May    through
    October, with treatment at other times on an as-needed basis.
    During     the    off-season,       from     November    to    April,     appellants
    contend compliance should be required only when North Jersey
    actually anticipates diverting water from the Passaic River into
    the Wanaque Reservoir.          They asserted that off-season diversion
    occurs infrequently and can be scheduled sufficiently in advance
                                                4                                  A-5266-07T3
    to permit dischargers to reduce their effluent to the required
    phosphorus standard.          The Department had rejected that approach
    during   the    WQMPs    adoption   process,      taking    the   position   that
    "[t]ying   effluent      limits   to   an     unpredictable   pumping   regimen
    outside the control of the regulated entity is institutionally
    impracticable."       40 N.J.R. 2574(b) (May 19, 2008).
          In our earlier opinion, we observed that the Department had
    not explained what it meant by "institutionally impracticable"
    and   noted    that     the   extensive       documentary   record   supporting
    adoption of the stringent discharge limitations did not address
    that issue.       In re Adoption of Amendments to the Ne., Upper
    Raritan, Sussex Cnty. & Upper Del. Water Quality Mgmt. Plans,
    supra, Nos. A-5266-07, A-5271-07, A-5990-07, and A-5993-07 (slip
    op. at 12).       We concluded that
                  the   feasibility  of   generally  requiring
                  adherence to those limitations only from May
                  through October depends on the answer to two
                  questions.   First, how long in advance can
                  North Jersey reasonably be expected to know
                  of the need for an off-season diversion?
                  Second, how much advance notice of a
                  proposed diversion will appellants and other
                  dischargers require in order to bring the
                  level of phosphorus in their effluent into
                  compliance with the new strict phosphorus
                  limitations during the off-season?
                  [Id. (slip op. at 13).]
                                              5                             A-5266-07T3
    Consequently, we remanded for an evidentiary hearing to address
    those questions, but upheld the validity of the WQMPs amendments
    in all other respects.      We retained jurisdiction.
        On remand, the Department transferred the matter to the
    Office of Administrative Law (OAL) for an evidentiary hearing.
    Following some motion practice not involved in this appeal, 4 the
    administrative law judge (ALJ) issued a pre-hearing order that
    provided for all testimony to be pre-filed, with the hearing
    limited   to   cross-examination      and   redirect-examination.         The
    hearing took place on seven days between May 20 and December 17,
        With respect to        the first question, how far in advance
    North Jersey can reasonably be expected to predict the need for
    an off-season diversion of water from the Passaic River to the
    Wanaque Reservoir, the parties presented three witnesses: Dr.
    Pen C. Tao, manager and hydrologist of North Jersey's Source
    Water   Management   and   Planning     Department   on   behalf   of   North
    Jersey;   Richard    D.    Grabowski,     the   Department's   Supervising
    Environmental Specialist in the Division of Water Supply, Bureau
      The Department objected to appellants' demands for certain
    water quality data used in developing the TMDLs and moved to
    limit discovery. The ALJ granted the motion. The Commissioner
    denied interlocutory review, and we denied leave to appeal. The
    ALJ also granted the Department's motion to join North Jersey as
    an indispensable party.      North Jersey sought interlocutory
    review of that order, which the Commissioner denied, as did we.
                                          6                             A-5266-07T3
    of Water Allocation on behalf of the Department; and Les K.
    Lampe, a licensed professional engineer and Vice President of
    Black and Veatch in its Water Resources Global Practice and
    Technology Leader Department on behalf of appellants.
          On the second issue, how much advance notice of a diversion
    is    required    for     dischargers      to   bring    their    effluent      into
    compliance with the required phosphorus limitations, the parties
    presented six witnesses: Jurek Patoczka,5 licensed professional
    engineer with Hatch Mott MacDonald on behalf of WTSA; Robert N.
    Bongiovanni,      the     Executive      Director   of   Two     Bridges;     Robert
    Rectanus,6 senior engineer with Black and Veatch, the consulting
    engineering firm retained by Two Bridges to develop a plan for
    compliance       with     the    TMDLs;    Louis    T.    Barry,     a    licensed
    professional          engineer      with        Chavond-Barry       Engineering,
    consultants      to     Two   Bridges;    Timothy   D.   Bradley,     a   licensed
    professional engineer and the Director of Wastewater Practice
    for   Omni   Environmental,        consultants      to   Madison-Chatham;         and
    Michael Wynne, Executive Director of Hanover.
      Please note that Patoczka's name is misspelled as "Uri Petaska"
    in the transcript.
      Please note the Rectanus's last name is misspelled as "Retanis"
    in the transcript.
                                               7                                A-5266-07T3
          With respect to the time it takes "a clean drop of water"
    to travel from the WTSA treatment plant to the confluence of the
    Passaic River with the Pompton River, Patricia Kehrberger, an
    expert in water quality modeling and evaluation, testified for
    WTSA; and Hui Pang, an expert in investigation and modeling of
    the transport of pollutants in river and lake systems, testified
    for   the    Department.        Pilar    Patterson,             Bureau       Chief   of     the
    Department's Bureau of Surface Water Permitting, testified about
    the   time    required    for    dischargers            to    sample    and    demonstrate
    compliance with the applicable TMDLs limit.
          Barbara        Hirst,    Chief    of        the        Department's       Bureau       of
    Environmental Analysis and Restoration within the Division of
    Watershed      Management,      testified          concerning          the    Department's
    earlier rulemaking decision.                 Richard T. Dewling, a licensed
    professional engineer and President of Dewling Associates, Inc.,
    testified on behalf of appellants that there was no scientific
    or technical basis for requiring phosphorus to be removed in the
    winter      months    when    water     is       not    diverted       to     the    Wanaque
          In her decision, the ALJ summarized the testimony of the
    seventeen witnesses presented by the parties, all of whom were
    qualified as experts in their fields.                         She determined that at
    the   time    the    amended    WQMPs    were          adopted    there       had    been    no
                                                 8                                       A-5266-07T3
    objective     substantiation        of     the      Department's         conclusion        that
    conditional         off-season          limitations          were        "institutionally
           Based upon her review of the historic records, the ALJ
    found that, in the years 2000 to 2009, North Jersey diverted
    water from the Passaic River during winter months on only six
    occasions     that     would     have     required         dischargers          to    commence
    treatment if an off-season, as-needed treatment program had been
    in   place.         Four   of    those     occasions         would       have    involved      a
    temporary period of phosphorus treatment, while two would have
    necessitated        only   an    early    resumption         of    the     regular        summer
    treatment schedule.             In the earlier period of 1990 to 1999,
    North Jersey diverted water from the Passaic River during winter
    months on only five occasions, four of which would have required
    temporary     treatment.          The     other       would       have    been       an   early
    resumption of regular treatment.
           The    ALJ     concluded         that       North     Jersey       is    capable      of
    predicting most of the conditions requiring diversions fourteen
    days   or    more    in    advance.        She       noted    that       the    "real     time"
    conditions have not been significant to the pumping decisions
    historically.          She      found    that       North     Jersey      is    capable      of
    notifying the Department and dischargers of potential diversions
    two weeks in advance of any actual diversions.                                  She further
                                                   9                                      A-5266-07T3
    concluded that a fourteen-day notice requirement prior to any
    water diversion would not lead to a disastrous water supply
    shortfall in the northeastern region of New Jersey.
        Because North Jersey would exercise the sole discretion as
    to when to initiate pumping events, the ALJ concluded that it
    could build extra time into the notice period, thereby assuring
    that the stricter phosphorus levels would be attained prior to
    pumping.     The dischargers would then be required to continue
    treatment until North Jersey advised them that it was no longer
        Based    on   her   evaluation   and    weighing    of   the   scientific
    evidence    presented   at   the   hearing,    the     ALJ   concluded    that
    dischargers, including appellants, have sufficient information
    about their own wastewater treatment processes, waste stream,
    and chemical additives to enable them to resume the required
    level of treatment when necessary to treat effluent prior to an
    off-season diversion by North Jersey.             She further concluded
    that the scientific evidence adduced at the hearing supported
    the conclusion of several experts, to a reasonable degree of
    certainty in their fields of expertise, that dischargers that do
    not utilize ponds in their treatment systems can re-achieve the
    required monthly average level of phosphorus within five days of
    initiating increased treatment.            Dischargers with aeration or
                                         10                              A-5266-07T3
    polishing ponds would need additional time, corresponding to the
    number of days it takes the treated effluent to transit and exit
    the pond.
        The      ALJ    further        concluded      that    appellants       and    other
    upstream dischargers can comply with monitoring, testing, and
    other reasonable conditions imposed by the Department incidental
    to implementation of an off-season, as-needed treatment program.
    In the event a discharger is unable to comply, the ALJ noted
    that the non-compliant discharger could be required to treat on
    a year-round basis.
        The ALJ found that year-round treatment would result in use
    of public resources for unnecessary introduction of chemicals
    into the Passaic River and the production of additional sludge
    requiring disposition.           However, the ALJ also concluded that the
    economic impact of year-round phosphorus treatment, even though
    that treatment might be unnecessary for seventy-five percent or
    four-and-one-half         months    of    the   winter    season,    had    not    been
    demonstrated to be significant.
        The      ALJ    reached      five     final    conclusions.          First,    the
    Department     failed       to     make    a    diligent       inquiry     into     the
    feasibility    of    an    off-season,       as-needed     treatment     program    in
    initially    adopting      the     revised      WQMPs    for   the   Passaic      River
    Basin.    Second, such an off-season, as-needed treatment program
                                               11                                A-5266-07T3
    is feasible given the current wastewater treatment technology,
    assuming       reasonable    cooperation         among    the    agencies     involved.
    Third, the costs of year-round phosphorus treatment would not
    place     a    significant        fiscal    burden       on     upstream     wastewater
    treatment          facilities.        Fourth,       an     off-season,        as-needed
    treatment      program     would    be   environmentally          protective    of   the
    Wanaque Reservoir and its supply of safe drinking water and at
    least environmentally neutral with respect to the Passaic River
    and byproducts of the use of unnecessary chemicals.                          Fifth, the
    Department has the necessary authority to implement the proposed
    as-needed program.
         The Commissioner rejected the ALJ's ultimate conclusion.
    Instead, he concluded that implementation of such a treatment
    program       is    institutionally        impractical.           He    explained    his
    reasons       in   a   detailed    twenty-two      page       final    decision.     The
    Commissioner forwarded his remand decision to the clerk in July
    2012, after which we allowed the parties to submit additional
         Appellants challenge the Commissioner's rejection of the
    ALJ's conclusion that an off-season, as-needed treatment program
    is   institutionally         feasible       and    argue        that    he   improperly
    rejected or ignored the ALJ's findings and conclusions.
                                                12                                 A-5266-07T3
          Our scope of review of an administrative agency's final
    determination      is   limited.       In    re   Carter,    
    191 N.J. 474
    ,   482
    (2007).      A court may reverse only if it "conclude[s] that the
    decision of the administrative agency is arbitrary, capricious,
    or unreasonable, or is not supported by substantial credible
    evidence in the record as a whole."                       J.D. v. N.J. Div. of
    Developmental Disabilities, 
    329 N.J. Super. 516
    , 521 (App. Div.
    2000); see also Clowes v. Terminix Int'l, Inc., 
    109 N.J. 575
    588 (1988); Outland v. Bd. of Trs., 
    326 N.J. Super. 395
    , 399
    (1999).      We accord a "strong presumption of reasonableness" to
    an     agency's          "exercise           of        statutorily        delegated
    responsibilities."          City of Newark v. Natural Res. Council, 
    82 N.J. 530
    , 539, cert. denied, 
    449 U.S. 983
    101 S. Ct. 400
    , 66 L.
    Ed.   2d    245   (1980).      "The    burden     of    demonstrating     that   the
    agency's action was arbitrary, capricious or unreasonable rests
    upon the [party] challenging the administrative action."                      In re
    385 N.J. Super. 440
    , 443-44 (App. Div.), certif. denied,
    188 N.J. 219
          Our    limited    standard      of    review   of   administrative     agency
    decisions is informed by three inquiries:
                 (1) whether the agency's action violates
                 express or implied legislative policies,
                 that is, did the agency follow the law;
                 (2) whether the record contains substantial
                                               13                              A-5266-07T3
                evidence to support the findings on which
                the agency based its action; and (3) whether
                in applying the legislative policies to the
                facts, the agency clearly erred in reaching
                a conclusion that could not reasonably have
                been made on a showing of the relevant
                [Mazza v.           Bd.   of    Trs.,       
    143 N.J. 22
    ,      25
    Where an agency's expertise is a factor, a court defers to that
    expertise,     particularly           in   cases    involving         technical        matters
    within   the      agency's       special     competence.              In   re    Freshwater
    Wetlands Prot. Act Rules, 
    180 N.J. 478
    , 488-89 (2004).
          "[J]udicial deference to administrative agencies stems from
    the   recognition      that      agencies        have    the   specialized           expertise
    necessary    to    .   .    .    deal[]     with        technical      matters        and   are
    'particularly well equipped to read and understand the massive
    documents    and    to     evaluate        the    factual      and     technical        issues
    . . . .'"      N.J. State League of Municipalities v. Dep't of Cmty.
    158 N.J. 211
    , 222 (1999) (quoting Bergen Pines Cnty.
    Hosp. v. N.J. Dep't of Human Servs., 
    96 N.J. 456
    , 474 (1984)).
    "'[W]here there is substantial evidence in the record to support
    more than one regulatory conclusion, it is the agency's choice
    which governs.'"           Murray v. State Health Benefits Comm'n, 
    337 N.J. Super. 435
    , 442 (App. Div. 2001) (citation and internal
    quotation marks omitted) (quoting In re Vineland Chem. Co., 
    243 N.J. Super. 285
    , 307 (App. Div.), certif. denied, 
    127 N.J. 323
                                                 14                                       A-5266-07T3
    (1990)).     The court "may not vacate an agency determination
    because of doubts as to its wisdom or because the record may
    support    more   than   one   result,"     but   is    "obliged    to    give   due
    deference to the view of those charged with the responsibility
    of implementing legislative programs."                  In re N.J. Pinelands
    Comm'n    Resolution     PC4-00-89,   356    N.J.      Super.    363,    372   (App.
    Div.) (citing Brady v. Bd. of Review, 
    152 N.J. 197
    , 210 (1997)),
    certif. denied, 
    176 N.J. 281
        In     reviewing     administrative      adjudications,        an    appellate
    court must undertake a "careful and principled consideration of
    the agency record and findings."             Riverside Gen. Hosp. v. N.J.
    Hosp. Rate Setting Comm'n, 
    98 N.J. 458
    , 468 (1985).                        "If the
    Appellate    Division     is   satisfied     after      its     review   that    the
    evidence and the inferences to be drawn therefrom support the
    agency head's decision, then it must affirm even if the court
    feels that it would have reached a different result itself."
    Clowes, supra, 109 N.J. at 588.            If, however, our review of the
    record leads us to conclude that the agency's finding is clearly
    erroneous, the decision is not entitled to judicial deference
    and must be set aside.         L.M. v. Div. of Med. Assistance & Health
    140 N.J. 480
    , 490 (1995).                 We may not simply rubber
    stamp an agency's decision.           In re Taylor, 
    158 N.J. 644
    , 657
                                          15                                   A-5266-07T3
        An ALJ's factual findings and legal conclusions are not
    "binding upon [an] agency head, unless otherwise provided by
    statute."     N.J.A.C. 1:1-18.1(c).              Accordingly, an agency head
    reviews an ALJ's decision "de novo . . . based on the record"
    before the ALJ.         In re Parlow, 
    192 N.J. Super. 247
    , 248 (App.
    Div. 1983).
        An     agency    head       may    only    reject   the   ALJ's    credibility
    findings after he or she "determine[s] from a review of the
    record     that     the     findings      are     arbitrary,       capricious     or
    unreasonable or are not supported by sufficient, competent, and
    credible     evidence      in    the    record."        N.J.S.A.      52:14B-10(c).
    However, the limitation in N.J.S.A. 52:14B-10(c) does not apply
    to the testimony of expert witnesses.               ZRB, L.L.C. v. N.J. Dep't
    of Envtl. Prot., 
    403 N.J. Super. 531
    , 561 (App. Div. 2008); see
    also Cavalieri v. Bd. of Trs., 
    368 N.J. Super. 527
    , 533-34 (App.
    Div. 2004); S.D. v. Div. of Med. Assistance & Health Servs., 
    349 N.J. Super. 480
    , 485 (App. Div. 2002).
        Applying our limited scope of review to the remand decision
    in light of the record on appeal, the ALJ's decision, and the
    applicable    law,    we    conclude      that   the    result   reached    by   the
    Commissioner is not arbitrary, capricious, or unreasonable, and
                                              16                               A-5266-07T3
    that it is supported by substantial credible evidence in the
    record as a whole.
          The decision at issue involves the enforcement of important
    water    quality     statutes    intended      to     improve      the   quality    of
    drinking water in the covered area through treatment to reduce
    the amount of phosphorous and then to maintain that improved
    quality.     The Department, because of its expertise in the field
    of    environmental        protection,        has     been    tasked      with     the
    responsibility        of    implementing            and     enforcing       the    new
    requirements for the benefit of the public.                   As noted above, we
    are required to defer to an administrative agency's expertise,
    particularly    in    cases     involving     technical      matters     within    the
    agency's special competence.             Freshwater Wetlands, supra, 180
    N.J. at 488-89.        That deference is clearly applicable in this
    case.     And, as with any review of an administrative action, the
    issue is not whether we would have reached the same result, but
    whether the result reached by the Commissioner is "arbitrary,
    capricious, or unreasonable, or is not supported by substantial
    credible evidence in the record as a whole."                    J.D., supra, 329
    N.J. Super. at 521.
          As we suspected in our initial opinion, the ALJ determined
    that the Department's initial rejection of appellants' proposal
    for     off-season,    as-needed     treatment        was    not    based     on   any
                                             17                                  A-5266-07T3
    significant      study    or    consideration        of   the     issue.      To   that
    extent, it was arbitrary and not supported in the record.                           Our
    remand was for the express purpose of requiring such a study, to
    be focused on the time "reasonably" required by North Jersey to
    predict    the    need    for   a    diversion       of   water    to   the   Wanaque
    Reservoir and the lead time required by upstream dischargers,
    such as appellants, to decrease their effluent to the required
    phosphorus level.
        The Commissioner concluded that the ALJ improperly shifted
    the focus of the remand by approaching the analysis from the
    perspective of whether North Jersey can "wait out" the time it
    would   take     appellants      and    other    dischargers       to   bring      their
    effluent    into     compliance         with    phosphorus         limits,    thereby
    requiring North Jersey to alter its mode of operations.                               We
    agree with that assessment to the extent that the ALJ appears to
    have placed the burden on North Jersey to demonstrate that it
    cannot and should not be required to change its way of operation
    to accommodate an off-season, as-needed treatment program.
        North        Jersey's      Tao     took    the    position      that     diversion
    decisions needed to be made in as little as two days, depending
    on then-existing "real-time" circumstances.                     The ALJ questioned
    that assertion.          To a significant extent, the ALJ's skepticism
    was based on Lampe's testimony that a diversion prediction could
                                              18                                  A-5266-07T3
    be made much further in advance.                      Tao's testimony was a mixture
    of fact and expert testimony, but his opinion was based on his
    historical       experience         at       North        Jersey,           along       with     his
    anticipation that, once the water quality has been improved,
    North Jersey would make more frequent diversions of water for
    shorter    durations         than      in    the        past,    and        his     acknowledged
    expertise in the field.                Lampe's testimony was based on models
    and experience with treatment in other locations, rather than
    actual experience concerning the Wanaque Reservoir.
        We are satisfied that the Commissioner's decision to accept
    Tao's     opinion       rather      than         Lampe's        was     not       arbitrary          or
    capricious.            It   is      adequately           supported          in      the    record,
    especially given the Department's expertise.                                 Even if the ALJ
    was correct that Tao's two-day estimate is sometimes too low, we
    conclude       that    there     are     sufficient         facts       in    the       record       to
    support    the    Commissioner's            rejection       of    the       ALJ's       conclusion
    that North Jersey could reasonably predict the need to divert
    water significantly longer in advance, particularly given Tao's
    desire    to     transition       to     more      frequent,          but    less       prolonged,
    periods of diversion.
        The        Commissioner         also         rejected       the     ALJ's          conclusions
    concerning       the    time     necessary         for    dischargers             to    bring    the
    quality    of    their      effluent        to    the    required       level          prior    to   a
                                                     19                                        A-5266-07T3
    diversion.      He observed that the ALJ's conclusion was based
    primarily on Patoczka's testimony that it would take five days
    to do so, testimony the Commissioner found inconsistent with
    that of other witnesses whose opinions he found more reliable,
    including Wynne, Rectanus, and Bradley.                The Commissioner also
    noted   that     Patoczka       had     not   even    distinguished     between
    facilities     with    and    without   finishing     ponds,   a   factor    found
    significant by the ALJ.            Based on his weighing of the expert
    testimony and other evidence, the Commissioner concluded that it
    would take at least seven days                advance notice, with several
    additional     days     for    facilities     using   finishing     ponds,     for
    dischargers to treat their effluent to the required level.
        The Commissioner further rejected the ALJ's conclusion that
    there would be sufficient time for dischargers to test the water
    quality adequately after treatment but prior to diversion by
    North Jersey.         In doing so, he relied on Patterson's testimony
    that it takes a minimum of twenty-eight hours for a discharger
    with an on-site certified laboratory and typically about four
    days for a discharger without an on-site laboratory, although
    some can take as long as ten days.               Bradley testified that for
    facilities without on-site laboratories, it takes one week to
    get printed results back from a laboratory, and expedited review
    takes about half that time.               Relying on N.J.A.C. 7:14A-14.2,
                                             20                             A-5266-07T3
    table    14-1,      which       requires         composite      samples      for      major
    dischargers to demonstrate compliance, the Commissioner declined
    to accept the ALJ's finding that one sample would be sufficient
    to demonstrate that the level of compliance had been achieved.
    Finally,     the    Commissioner       concluded        that    an     off-season,       as-
    needed treatment program would impose significant burdens on the
    Department, including a need for additional staff.
           Our   review        of    the       record       convinces       us   that        the
    Commissioner's conclusions were not arbitrary or capricious, and
    that they are amply supported in the record.                         Like the issue of
    North Jersey's ability to predict the need for diversion, the
    time-to-treat issue implicates the Department's expertise.                               The
    Commissioner's decision to give more weight to the opinions of
    experts other than those favored by the ALJ is an exercise of
    that    expertise.           Because       the     Commissioner's        choice       finds
    significant        support      in   the     record,      his    decision      was       not
    arbitrary or capricious.
           Having upheld the Commissioner's determination that North
    Jersey cannot reasonably be expected to give significant advance
    notice of a diversion and that the dischargers cannot reasonably
    be expected to bring their effluent to the required standard,
    including time required for testing within the time reasonably
    required     by    North     Jersey,       we    find    that    the    Commissioner's
                                                21                                     A-5266-07T3
    conclusion that an off-season, as-needed treatment program is
    "institutionally impracticable" is not "arbitrary, capricious,
    or   unreasonable,"   nor    is    it     "[un]supported     by   substantial
    credible evidence in the record as a whole."               J.D., supra, 329
    N.J. Super. at 521.         Especially on a question involving the
    quality   of   drinking   water,    our    obligation   to    defer   to    the
    Department's special expertise, Freshwater Wetlands, supra, 180
    N.J. at 488-89, permits no other result on the record before us.7
      As noted at the beginning of our opinion, the appellants have
    not built the required facilities and, of necessity, have not
    started treatment. Once the treatment program has actually been
    in operation for several years and there is actual experience
    concerning North Jersey's needs and timing of diversion,
    appellants can seek to revisit the viability of an off-season,
    as-needed treatment program.
                                        22                                A-5266-07T3