City of Newark v. Department of Health of State of N. J.
| Decision Date | 04 March 1970 |
| Citation | 262 A.2d 718,109 N.J.Super. 166 |
| Parties | , 1 ERC 1180, 83 P.U.R.3d 281 CITY OF NEWARK, a municipal corporation of New Jersey, Petitioner, v. DEPARTMENT OF HEALTH OF the STATE OF NEW JERSEY, North Jersey District Water Supply Commission, Town of Kearny, Borough of Glen Ridge, Town of Bloomfield, Town of Montclair, City of Passaic, City of Paterson, City of Clifton and Passaic Valley Water Commission, Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Theodore A. Schwartz, Deputy Atty. Gen., for Dept. of Health (Arthur J. Sills, Atty. Gen., attorney, Stephen Skillman, Deputy Atty. Gen., of counsel).
Oscar R. Wilensky, Passaic, for North Jersey Dist. Water Supply Commission.
Newton M. Roemer, Paterson, for Passaic Valley Water Commission.
Respondents Town of Kearny, Borough of Glen Ridge, Town of Bloomfield and Town of Montclair did not file briefs.
Respondents City of Clifton, City of Paterson and City of Passaic did not file briefs but rely on the arguments of respondent Passaic Valley Water Commission.
Before Judges GOLDMANN, LEWIS and MATTHEWS.
The opinion of the court was delivered by
MATTHEWS, J.A.D.
This matter is before the court on a petition for a declaratory judgment filed by the City of Newark pursuant to R.R. 4:88--10 (now R. 2:2--3(a)(2), 2:5--1(c)) at the direction of Judge Mountain of the Chancery Division. In the petition the city seeks to challenge the validity of certain rules and regulations promulgated by respondent Department of Health of the State of New Jersey (Department) dealing with potable water standards, and a departmental order issued January 24, 1966 to respondent North Jersey District Water Supply Commission (North Jersey District).
Originally, the Department instituted an action in the Chancery Division seeking a mandatory injunction which would require the North Jersey District to effect immediate compliance with the January 24, 1966 order issued by the Department pursuant to the provisions of N.J.S.A. 58:11--1, et seq. That order required the North Jersey District to improve, add to or alter, before January 1, 1968, the water treatment plant located at the Wanaque reservoir which is owned and operated by it, to the end that the water contained therein should be purified in a manner approved by the Department, prior to its being distributed for potable and culinary purposes. In the Chancery Division action the Department took the position that the water collected and stored in the Wanaque reservoir and distributed to various municipalities failed and continues to fail to meet the standards of purity and potability that have been promulgated by it.
The North Jersey District filed an answer to the complaint which did not dispute the validity or legality of the order issued by the Department. It did point out, however, that it had no funds to effect construction of a filtration and purification plant of the size required under the Department's order, and, in addition, that it did not have the statutory authority to raise funds for this purpose by The third-party defendants all filed answers and raised certain defenses, two of which are involved in this proceeding:
issuing bonds or otherwise. The answer also alleged that in order for the North Jersey District to comply with the Department's order it would be necessary for it to obtain the financial backing from its constituent municipalities which receive potable water from its Wanaque reservoir. To this end, the North Jersey District sought and was granted leave to file a third-party complaint against its constituent municipalities and the Passaic Valley Water Commission.
1. The potable water standards that have been promulgated by the Department and upon which its order of January 24, 1966 is based, exceed the authority of the Department as delegated to it by the Legislature and, therefore, as administrative regulations, are invalid;
2. The aforementioned order of the Department is further invalid because (a) it was adopted and issued without a preliminary hearing being afforded either the North Jersey District or any of the constituent municipalities, and (b) it cannot be considered effective as against the various third-party defendants since they are not named in the order and it is not directed to any of them.
The constituent municipalities which now receive all or part of their potable water supplies from the Wanaque reservoir maintained and operated by the North Jersey District include Bloomfield, Clifton, Glen Ridge, Kearny, Montclair, Newark, Passaic and Paterson. Clifton, Passaic and Paterson actually obtain their proportionate share of this water supply through the instrumentality of the Passaic Valley Water Commission (Passaic Valley) through whose facilities it is transmitted by the North Jersey District.
After all of the aforementioned pleadings had been filed in the Chancery Division, the trial judge reached the conclusion that some of the questions raised in the answers to the third-party complaints, specifically those mentioned above, should be passed upon by this court under the provisions of
the rules mentioned above. He directed counsel for the third-party defendants to initiate, within 20 days from the date of his determination (December 9, 1968), 'an independent plenary action in the Appellate Division under R.R. 4:88--10 and 4:88--8 for the purpose of securing a prompt review of the validity of the applicable regulations of the State Department of Health and its ensuing order.' The trial judge also directed that, pending determination of the action instituted in this court, the Chancery Division action would remain in Status quo. Bloomfield, Glen Ridge, Kearny and Montclair have not filed briefs in this action and have notified us that they will abide by whatever decision is made. Clifton, Passaic and Paterson have not filed independent briefs, and have informed us that they adopt the position taken by Passaic Valley in its brief. The Department, the North Jersey District and Newark have filed briefs.
Only Newark questions the validity of the potable water standards issued by the Department. In doing so it contends that the standards are 'illegal and void and beyond the power of the Department and that the Department is without power to order the highly expensive filtration of the water in the Wanaque watershed solely by reason of said water containing miniscule percentages of iron and manganese faintly affecting coloration merely, and not at all affecting public potability and health.'
The standards questioned here are contained in the potable water standards promulgated by the Department and filed with the Secretary of State on August 21, 1967, to be effective October 1, 1967. The standards challenged provide, in relevant part:
3.1 Water intended for potable purposes shall not contain impurities in concentrations which may be hazardous to the health of the consumer or be corrosive to the water supply system. Substances used in its treatment shall not remain in the water in concentrations greater than required by good practice. Substances which may have a deleterious physiological effect, or for which physiological effects are not known, shall not be introduced into the system in a manner which would permit them to reach the consumer.
3.2 Physical Characteristics
The physical characteristics of water intended for potable purposes shall not exceed the following limits:
a. Turbidity--not to exceed 5 part per million (Milligrams per Liter) (silica scale).
b. Color--not to exceed 10 units (standard cobalt scale).
c. Taste--the water shall have no objectionable taste.
3.3 Chemical Characteristics
b. The following chemical substances should not be present in a water intended for potable purposes in excess of, or (where applicable) below, the listed concentrations. Their presence may constitute grounds for the rejection of the supply if, in the opinion of this Department, such substances, either singly or in combination, are present in such concentrations as would render the water unduly corrosive, unpalatable, hazardous to the consumers or aesthetically objectionable.
Substance Recommended Concentration
Maximum Minimum
--------------- ----------
Iron (Fe) * 0.3 ppm (Mg/L)
Manganese (Mn) * 0.05 ppm (Mg/L)
4.1 Water intended for potable purposes shall be free from:
a. Visible organisms such as algae, algae diatoms, crustaceans, arachnids, and larvae.
b. Those micro-organisms which render the water unpalatable, or unaesthetic to the consumer.
The record before us discloses that present treatment methods at Wanaque are comprised of rough screening, p.h. adjustment by lime, and disinfection by ammonia and chlorine. There is no treatment to reduce turbidity (I.e., flocculation and sedimentation), no filtration to provide a barrier against the ingress of particulate, organic and biological matter into the distribution system, and no treatment to remove the manganese in the system. We are informed that manganese is a prime cause of dirty or black water complaints; when present in the system, even in small concentrations, it has the effect of slowly oxidizing and depositing on the interior of the aqueducts and distribution systems.
It should also be observed that the Wanaque reservoir receives waters containing effluents from seven sewage treatment plants.
The Department has made various inspections of the North Jersey District facilities and, as required by N.J.S.A. 58:11--12, the North Jersey District has furnished monthly operating reports and other related information to the Department. These monthly reports contain detailed laboratory analyses of North Jersey District water sampled at various points. The charts plotted from...
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