IN THE MATTER OF THE PETITION OF NEW JERSEY NATURAL GAS COMPANY FOR APPROVAL AND AUTHORIZATION TO CONSTRUCT AND OPERATE THE SOUTHERN RELIABILITY LINK PURSUANT TO N.J.A.C. 14:7-1.4 (NEW JERSEY BOARD OF PUBLIC UTILITIES)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2876-15

IN THE MATTER OF THE

PETITION OF NEW JERSEY

NATURAL GAS COMPANY

FOR APPROVAL AND

AUTHORIZATION TO

CONSTRUCT AND OPERATE

THE SOUTHERN RELIABILITY

LINK PURSUANT TO N.J.A.C.

14:7-1.4.

____________________________

Argued April 13, 2021 – Decided April 29, 2021

Before Judges Yannotti, Haas and Natali.

On appeal from the New Jersey Board of Public

Utilities, No. GE15040402.

Paul Leodori argued the cause for appellant Pinelands

Preservation Alliance (Paul Leodori, PC, attorneys;

Todd M. Parisi, on the briefs).

Geoffrey R. Gersten, Deputy Attorney General, argued

the cause for respondent New Jersey Board of Public

Utilities (Gurbir S. Grewal, Attorney General, attorney;

Melissa H. Raksa, Assistant Attorney General, of

counsel; Andrew M. Kuntz, Deputy Attorney General,

and Geoffrey R. Gersten, on the brief).

James C. Meyer argued the cause for respondent New

Jersey Natural Gas Company (Riker Danzig Scherer

Hyland & Perretti, LLP, attorneys; Kevin H. Marino

and John A. Boyle, on the brief).

Maura A. Caroselli, Assistant Deputy Rate Counsel,

argued the cause for respondent New Jersey Division of

Rate Counsel (Stephanie A. Brand, Director, attorney;

Maura A. Caroselli, on the brief).

PER CURIAM

This appeal arises from a petition filed by respondent New Jersey Natural

Gas Company (NJNG) for a permit needed to construct a natural gas pipeline

through several municipalities and a portion of the Pinelands Area. On August

19, 2015, the Board of Public Utilities (Board) denied appellant Pinelands

Preservation Alliance's (PPA's) motion to require the Board to conduct an

adjudicatory hearing on the petition and to grant PPA intervenor or participant

status in the Board's review process. On January 28, 2016, the Board granted

NJNG's petition for the required permit.

PPA appeals from the Board's decisions. Having reviewed PPA's

contentions in light of the record and applicable law, we affirm.

I.

The parties are familiar with the procedural facts and history of this

matter, which are also discussed in our decision today in PPA's companion

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2

appeal in Docket Nos. A-3666-15 and A-3752-15.1 To avoid repetition, we

incorporate that discussion here by reference. Therefore, we need only recite

the most salient history in this opinion.

NJNG is a New Jersey public utility engaged in the business of

purchasing, distributing, transporting, and selling natural gas in Morris,

Middlesex, Monmouth, and Ocean Counties, and the most southeastern portion

of Burlington County. While NJNG's northern service area was connected to

five interstate transmission feeds, three of which could independently supply

that entire region, NJNG's central and southern service areas were connected to

the Texas Eastern Transmission (TETCO) gas pipeline, a single interstate feed

located outside of NJNG's franchise area in Middlesex County.

On April 2, 2015, NJNG filed the MLUL petition with the Board

proposing the construction and operation of an interstate natural gas

transmission pipeline to be known as the Southern Reliability Link (SRL). As

explained in its MLUL petition, NJNG designed the SRL "to maintain system

1

In that appeal, PPA and the Sierra Club (SC) challenged the Board's March

18, 2016 decision granting NJNG's petition for a ruling that the Municipal Land

Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and any local governmental

development regulations adopted pursuant to the MLUL, would not apply to the

construction of the pipeline. In our opinion in that matter, we affirm the Board's

approval of NJNG's MLUL petition.

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3

integrity and reliability by creating a new, redundant major feed of natural gas

supplies from a second interstate transmission system." The SRL would connect

NJNG's existing natural gas system to a new interstate supply point located in

Chesterfield and operated by the Transcontinental Pipe Line Company

(Transco). The SRL would run from that supply point through six townships:

Chesterfield, North Hanover, Upper Freehold, Plumsted, Jackson, and

Manchester. A 12.1 mile portion in Ocean County, which included right-of-way

(ROW) areas located within and alongside the Joint Base McGuire-Dix-

Lakehurst (Joint Base), would cross the State-designated Pinelands Preservation

Area, N.J.S.A. 13:18A-2, -9, and -11(b). NJNG filed an amended MLUL

petition incorporating a new route through Upper Freehold Township on June 5,

2015.2

Simultaneously with its MLUL petition, NJNG filed a "safety petition"

with the Board in accordance with N.J.A.C. 14:7-1.4. That regulation requires:

(1) Board approval prior to the construction or operation of a natural gas pipeline

2

Because the pipeline would cross the Pinelands Preservation Area, NJNG also

filed an application with the Pinelands Commission (Commission) for approval

to construct the pipeline in the Pinelands. The Commission granted NJNG's

application on September 14, 2017. PPA and SC later filed separate appeals

challenging the Commission's decision. Docket Nos. A-925-17 and A-1004-17.

In an opinion also filed on this date, we affirm the Commission's approval of the

application.

A-2876-15

4

that is intended to be operated in excess of 250 psig (pound-force per square

inch gauge pressure), and is located within 100 feet of any building intended for

human occupancy; and (2) the pipeline to satisfy the federal requirements set

forth in chapter 49 C.F.R. 192, which "prescribes minimum requirements for the

design and installation of pipeline components and facilities" and "prescribes

requirements relating to protection against accidental overpressuring," 49 C.F.R.

§ 192.141.

Specifically, the SRL would operate at "an MAOP [(maximum allowable

operating pressure)] of 722 psig" in the six municipalities it crossed and be

located within 100 feet of 141 structures intended for human occupancy, of

which 130 were residential and 11 were commercial. NJNG's petition which,

like the MLUL petition, was amended in June 2015, further stated in technical

terms:

The Project's proposed transmission line will be

constructed of 30-inch outside diameter steel pipe with

a 0.500 inch wall thickness. It will be manufactured in

accordance with the applicable American Petroleum

Institute ("API") Standard 5L with specified minimum

yield strength of 60,000 psi and minimum tensile

strength of 75,000 psi. The Project will be constructed

in full accordance with N.J.A.C. 14:7 and the Federal

Regulations for the Transportation of Natural and Other

Gas By Pipeline, Part 192, Title 49 of the Code of

Federal Regulations ("49 CFR 192"). It is designed for

Class 4 Location and will be designed to accommodate

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5

future in-line inspection ("ILI") devices, in accordance

with the requirements for passage of internal inspection

devices at 49 CFR 192.150. Additionally, as required

in 49 CFR 192.901 through 192.951 (Subpart O), NJNG

has an Integrity Management Program in place.

The Project's proposed transmission line will be

subjected to 100% non-destructive testing on all welds

and a minimum of 1,500 psig of hydrostatic test

pressure for 24 hours. As part of this test, it will be

subjected to a strength test pressure of approximately

1,800 psig for no greater than one hour, intended to

produce 90% of its Specified Minimum Yield Strength.

As a result, the MAOP of this section of 30-inch main

will be rated at 722 psig, an equivalent MAOP to that

of NJNG's existing transmission system. The

engineering specifications are detailed on the "Pipeline

Engineering Data Sheet" attached to the April 2, 2015

Petition as Exhibit C.

Route studies were performed to determine a

route that will minimize and balance the impact to the

natural environment and the built environment, taking

into consideration the feasibility of constructing the

Project. Of the feasible buildable alternatives, the route

selected by NJNG, as reflected in the April 2, 2015

Petition, represents that alternative with the least

impacts. The Alternatives Analysis is attached to the

April 2, 2015 Petition as Exhibit E.

The [SRL] Project was developed as a redundant

supply line to an existing system in which additional

growth of the system was not taken into account during

its design, so no Smart Growth impact is anticipated.

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6

In June 2015, PPA filed a motion for leave to intervene in the Board's

review of NJNG's safety petition pursuant to N.J.A.C. 1:1-16.2 or, in the

alternative, for leave to participate pursuant to N.J.A.C. 1:1-16.6.

After considering PPA's contentions at an agenda meeting on August 19,

2015, the Board concluded in a thorough written decision that PPA did not have

a constitutional or statutory right to an adjudicatory hearing on NJNG's safety

petition, and had not demonstrated its entitlement to either intervenor or

participant status in the permit review process. However, the Board granted

PPA participant status at the evidentiary hearing conducted by Board

Commissioner Dianne Solomon on NJNG's MLUL petition. In addition, PPA

participated at public hearings held by Commissioner Solomon on both the

safety petition and the MLUL petition.

The public hearings were well attended, and the Board received over 1000

written comments concerning the SRL project. With particular reference to

NJNG's safety petition, Michael Stonack, Chief of the Board's Bureau of

Pipeline Safety, stated that pursuant to State and federal regulations, NJNG was

required to install remote controlled valves on the SRL for emergency shutdown.

NJNG also had to develop a comprehensive transmission pipeline integrity

management program that included performing inline inspections with devices

A-2876-15

7

known as "smart pigs." In addition, NJNG was required to provide full-time

inspectors, qualified by training and experience, to oversee the construction and

ensure State and federal regulatory compliance.

Stonack further reported that the Board's staff had determined the

proposed SRL was "in compliance with State and [f]ederal pipeline safety

regulations." The staff had reviewed NJNG's design and construction plans and

had performed field inspections of the entire proposed pipeline route and various

alternative routes. "Board staff are charged with making recommendations to

the Board." Stonack also stated that the staff intended to conduct pipeline safety

compliance inspections during the construction, as well as perform future

operating and maintenance inspections as part of the Board's ongoing "Pipeline

Safety Program."

Jaclyn Rhoads, PPA's Assistant Executive Director, along with PPA's

legal counsel, objected to the SRL, claiming that NJNG had provided conflicting

statements about the project's purpose, had not demonstrated the pipeline was

necessary for maintaining or safeguarding the region's natural gas supply, and

had not provided clear justification showing the Joint Base's need to have or use

the pipeline in association with the function of that federal installation. They

further asserted that NJNG had not addressed ecological disruptions and impacts

A-2876-15

8

on endangered species during construction, and claimed that the Board could

not waive compliance with the requirements of the Pinelands Protection Act

(Pinelands Act), N.J.S.A. 13:18A-1 to -29, and the Pinelands Comprehensive

Management Plan (CMP) during any evaluations of NJNG's petitions. Counsel

also asserted that NJNG was constructing the pipeline for profitability, not

reliability, and that its cost should not be passed onto ratepayers.

On January 27, 2016, the Board considered NJNG's safety petition at an

agenda meeting. Stonack advised the Commissioners on the petition, answered

their questions about alternative routes, and summarized the objections received

at the public hearings. He also reported that, because "one of our major

objectives was [to] try and mitigate the number of structures within 100 feet" of

the pipeline, the Board's staff had reviewed all of the possible alternative routes

and found that NJNG's proposed route was "the least impactful and, therefore,

[was] deemed to be the best alternative." Stonack explained:

Board staff worked with [NJNG] on the pipeline

alignment to mitigate the number of human-occupied

structures within 100 feet of the pipeline. The proposed

route proved to be the most viable upon reviewing a

number of factors, including impacts to the public,

structures, existing infrastructure, and the natural

environment, in addition to engineering and

construction considerations.

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9

I might mention that there were certain cases

where we weren't satisfied with the location of the

pipeline, [and] the amended route as it was originally

proposed, and we had asked the company to move the

pipeline slightly to be further away from structures and

they agreed to do so. But those changes don't mean that

there were considerable alignment changes relative to

where the pipeline is located along the routes, the

county roads that are part of the proposed alignment.

So in certain cases -- an example is we asked

them to move the pipeline further into the road so that

it was further away from structures. We had situations

where we talked about moving the pipelines to the

opposite side of the road -- those kinds of things.

Thus, based on NJNG's inspection protocols and safety measures, the

pipeline's proposed wall thickness and installation depth, and a record indicating

the SRL would meet or exceed State and federal standards, the staff found

NJNG's safety petition "reasonable" and recommended Board approval. At the

end of the meeting, the Board unanimously voted to accept the staff's

recommendation.

On January 28, 2016, the Board issued a written decision and order

approving NJNG's safety petition. The Board stated that its staff had: (1)

reviewed NJNG's proposal including "the Project design, construction plans and

specifications, [and] the listing of structures within one hundred (100) feet of

the Pipeline and their distances from the Pipeline alignment"; (2) "conducted a

A-2876-15

10

full field inspection of the entire Pipeline route"; and (3) considered all of the

possible and alternate routes. Additionally, Board staff had "worked with"

NJNG

on the Pipeline alignment to mitigate the number of

human-occupied structures within one hundred (100)

feet of the Pipeline. Several changes were agreed upon

that do not change the overall route of the Pipeline, but

have resulted in moving the Pipeline further away from

certain buildings intended for human occupancy, where

appropriate.

Based on that review, the Board determined that NJNG's proposed SRL

project met the safety requirements of N.J.A.C. 14:7 and satisfied even more

stringent standards than required by many federal pipeline regulations. The

Board explained:

For additional safety, during the pipeline construction,

seven (7) remote controlled valves for emergency

shutdown will be installed by NJNG. In accordance

with the requirements of N.J.A.C. 14:7-1.12, NJNG

will comply with a minimum four (4) feet depth of

cover over the Pipeline [ ] and Board Staff is requiring

the installation of two (2) twelve (12) inch wide

warning tapes [ ], side by side, over the Pipeline as an

additional damage prevention measure for the Pipeline.

Also, the Pipeline will be constructed using higher

strength steel pipe with yield strength equal to 60,000

pounds per square inch ("psi"). In addition, Board Staff

is requiring NJNG to complete an initial integrity

assessment of the Pipeline using inline inspection

devices within five (5) years from the date the Pipeline

is installed and placed into operation [ ].

A-2876-15

11

[NJNG] will have full-time inspectors, qualified by

training and experience, overseeing the Pipeline

construction to ensure that the Pipeline is constructed

and installed in accordance with State and Federal

requirements. All Pipeline welders will be qualified by

testing in accordance with the weld procedure qualified

for 60,000 psi yield strength pipe and all welds

completed during the Pipeline construction will be x-

rayed to ensure the integrity of the welds. In addition,

Board Staff will conduct Pipeline safety compliance

inspections during the construction of this Pipeline, as

well as perform future operating and maintenance

inspections on it as part of the Board’s ongoing Pipeline

Safety Program. In accordance with N.J.A.C. 14:7-

1.20, NJNG will perform inspection patrols at least

once per month to observe surface conditions on and

adjacent to the Pipeline right of way [sic] for

indications of leaks, construction activity and other

factors affecting safety and operation [ ]. NJNG shall

maintain with the Board a valve assessment and

emergency closure plan for the Pipeline and shall assess

each Pipeline valve on an annual basis. In addition, as

required by N.J.A.C. 14:7-1.22, NJNG will provide on-

site inspection oversight immediately prior to and

during any excavation and backfilling, and for bored or

horizontally directional drilled installations performed

by other excavators in the vicinity of the Pipeline.

NJNG will provide the pressure testing certification and

documentation required by N.J.A.C. 14:7-1.14 prior to

placing the Pipeline in operation.

[(footnotes omitted).]

The Board determined that, "[t]aken together, all of these safety and

preventative measures ensure[d] the integrity of the Pipeline and enhance[d]

public safety." Accordingly, it concluded that NJNG's request to construct and

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12

operate the SRL was "reasonable and . . . in compliance with all relevant

[f]ederal and State requirements." The Board therefore approved NJNG's safety

petition to construct the SRL pipeline pursuant to N.J.A.C. 14:7-1.4,

subject to the approval of all environmental permits

required by the New Jersey Department of

Environmental Protection, approval of road opening

permits from the affected counties and municipalities,

all other permits and approvals, if any, the approval of

traffic control and detour plans with the affected

jurisdictions, the installation of two (2) twelve (12) inch

wide warning tapes, side by side, over the Pipeline, the

pressure testing requirements of N.J.A.C. 14:7-1.14

prior to placing the Pipeline into operation, and

completion of an initial integrity assessment of the

Pipeline using inline inspection devices within five (5)

years from the date the Pipeline is installed and placed

into operation . . . .

Thereafter, PPA filed a notice of appeal from the Board's August 19, 2015

order denying its motion to intervene or participate, and the Board's January 28,

2016 order approving NJNG's safety petition. We consider each of these orders

in turn.

II.

PPA first contends that the Board's August 19, 2015 order deciding that

NJNG's safety petition was an uncontested case and, therefore, denying PPA's

motion for intervenor or participant status was arbitrary and capricious. We

disagree.

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Generally, an administrative agency has discretion in choosing the

"procedural mode of action" it will perform within the agency in the exercise of

its decision-making functions; but this "procedural mode" is "valid only when

there is compliance with the provisions of the Administrative Procedure Act

(APA), N.J.S.A. 52:14B-1 to -15, and due process." In re Provision of Basic

Generation Serv. for Period Beginning June 1, 2008, 205 N.J. 339, 347 (2011).

"The APA provides a road map for navigating administrative proceedings." In

re License of Fanelli, 174 N.J. 165, 172 (2002).

Under the APA, "all interested persons are afforded reasonable

opportunity to submit data, views or arguments, orally or in writing, during any

proceedings involving a permit decision." N.J.S.A. 52:14B-3.1(a). Due process

also requires "notice and opportunity to be heard." In re Proposed Quest Acad.

Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 384 (2013). However,

a formal or evidentiary hearing is clearly not required in every administrative matter.

Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (discussing due process); In re

Request for Solid Waste Util. Customer Lists, 106 N.J. 508, 520 (1987) (discussing

APA). "[A]gencies enjoy a great deal of flexibility in selecting the proceedings

most suitable to achieving their regulatory aims." Bally Mfg. Corp. v. N.J.

Casino Control Comm'n, 85 N.J. 325, 338 (1981). See Texter v. Dep't of Hum.

A-2876-15

14

Servs., 88 N.J. 376, 385 (1982) (stating agency has discretion "to select those

procedures most appropriate to enable the agency to implement legislative

policy").

In this regard, our review of an agency's decision is limited. In re Carter,

191 N.J. 474, 482 (2007). "Normally courts defer to the procedure chosen by

the agency in discharging its statutory duty." Customer Lists, 106 N.J. at 519.

Nevertheless, "[a]n appellate court may reverse an agency decision if it is

arbitrary, capricious, or unreasonable." Montclair Founders Grp., 216 N.J. at

385. As our Supreme Court has explained:

Although sometimes phrased in terms of a search for

arbitrary or unreasonable agency action, the judicial

role [in reviewing an agency action] is generally

restricted to 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 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 factors.

[Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J.

22, 25 (1995)).]

See also N.J.S.A. 48:2-46 (stating that "[n]o [Board] order shall be set aside in

whole or in part for any irregularity or informality in the proceedings of the

A-2876-15

15

board unless the irregularity or informality tends to defeat or impair the

substantial right or interest of the appellant").

In addition, we usually "defer to an agency's interpretation of both a

statute and implementing regulation, within the sphere of the agency's authority,

unless the interpretation is plainly unreasonable." Ardan v. Bd. of Rev., 231

N.J. 589, 604 (2018) (quoting In re Election Law Enf't Comm'n Advisory Op.

No. 01-2008, 201 N.J. 254, 262 (2010)). However, we are "in no way bound by

the agency's interpretation . . . or its determination of a strictly legal issue." Ibid.

(quoting US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012)). Accord In re

Implementation of L. 2018, C. 16 Regarding Establishment of Zero Emission

Certificate Program for Eligible Nuclear Power Plants, ___ N.J. Super. ___ (slip

op. at 42) (App. Div. 2021).

A motion to intervene in an administrative proceeding is governed by

N.J.A.C. 1:1-16.1(a) (emphasis added), which states that "[a]ny person or entity not

initially a party, who has a statutory right to intervene or who will be substantially,

specifically and directly affected by the outcome of a contested case, may on motion,

seek leave to intervene." The regulations further provide:

(a) In ruling upon a motion to intervene, the [agency]

shall take into consideration the nature and extent of the

movant's interest in the outcome of the case, whether or

not the movant's interest is sufficiently different from

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that of any party so as to add measurably and

constructively to the scope of the case, the prospect of

confusion or undue delay arising from the movant's

inclusion, and other appropriate matters.

(b) In cases where one of the parties is a State agency

authorized by law to represent the public interest in a

case, no movant shall be denied intervention solely

because the movant's interest may be represented in

part by said State agency.

(c) Notwithstanding (a) above, persons statutorily

permitted to intervene shall be granted intervention.

[N.J.A.C. 1:1-16.3.]

By contrast, a motion to participate may be made by any entity "with a

significant interest in the outcome of a case." N.J.A.C. 1:1-16.6(a) (emphasis

added). "In deciding whether to permit participation, the [agency] shall consider

whether the participant's interest is likely to add constructively to the case

without causing undue delay or confusion." N.J.A.C. 1:1-16.6(b).

An important difference between the two statuses is: intervenors in a

contested case are non-parties who "obtain all rights and obligations of a party,"

N.J.A.C. 1:1-2.1, including direct involvement in any required hearing. However,

participation is limited to: (1) oral argument; (2) filing a statement or brief;

and/or (3) filing exceptions to an initial decision with the agency head. N.J.A.C.

1:1-16.6(c).

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Thus, as a threshold issue before deciding an intervention motion, the

agency head must determine whether the matter before the agency is classified

as a contested case within the intent of the APA. See Sloan ex rel. Sloan v.

Klagholtz, 342 N.J. Super. 385, 392 (App. Div. 2001) (stating "agency head has

exclusive authority to determine whether an administrative matter is a 'contested

case' within the intent of the APA") (citing N.J.S.A. 52:14F-7(a)). This is a

"discretionary decision." Quad Enters. v. Borough of Paramus, 250 N.J. Super.

256, 263 (App. Div. 1991).

The term "contested case" "does not merely refer to whether sufficient

adversity exists between the parties . . . . [A] matter is a contested case where,

by virtue of statute or constitutional requirement, a hearing is required before a

State agency to determine rights, duties, obligations, privileges, benefits or other

legal relations of specific parties." 37 N.J. Practice, Administrative Law &

Practice § 4.7, at 185 (Steven L. Lefelt, Anthony Miragliotta, and Patricia

Prunty) (2d ed. 2000). The APA defines "contested case" as

a proceeding, including any licensing proceeding, in

which the legal rights, duties, obligations, privileges,

benefits or other legal relations of specific parties are

required by constitutional right or by statute to be

determined by an agency by decisions, determinations,

or orders, addressed to them or disposing of their

interests, after opportunity for an agency hearing . . . .

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[N.J.S.A. 52:14B-2.]

This statutory definition is mirrored in N.J.A.C. 1:1-2.1, which also adds

that a contested case "means an adversary proceeding," and that

[t]he required hearing must be designed to result in an

adjudication concerning the rights, duties, obligations,

privileges, benefits or other legal relations of specific

parties over which there exist disputed questions of

fact, law or disposition relating to past, current or

proposed activities or interests. Contested cases are not

informational nor intended to provide a forum for the

expression of public sentiment on proposed agency

action or broad policy issues affecting entire industries

or large, undefined classes of people.

[N.J.A.C. 1:1-2.1 (emphasis added).]

By contrast, the term "'[u]ncontested case' means any hearing offered by an

agency for reasons not requiring a contested case proceeding under the statutory

definition of contested case." N.J.A.C. 1:1-2.1.

We have adopted the following test for agencies to use in determining

whether a matter is contested or an uncontested case within the intendment of

these regulatory definitions:

[T]o determine whether a dispute is a contested case,

there are three questions which must be answered

affirmatively. First, is a hearing required by statute or

constitutional provision; second, will the hearing result

in an adjudication concerning rights, duties,

obligations, privileges, benefits or other legal relations;

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and third, does the hearing involve specific parties

rather than a large segment of the public?

[Bd. of Educ. of Upper Freehold Reg'l Sch. Dist. v.

State Health Benefits Comm'n, 314 N.J. Super. 486,

494 (App. Div. 1998) (quoting 37 N.J. Practice,

Administrative Law & Practice § 119, at 137 (Steven

L. Lefelt) (1988)).3]

Here, the Board applied this test and determined that its review of NJNG's

safety petition was an uncontested case that did not require an administrative

hearing. In doing so, the Board first asked whether PPA had a statutory or

constitutional right to a hearing and concluded it clearly did not. In addition,

the Board found that N.J.A.C. 14:7-1.4 did not require it to weigh any factual

findings in reaching its decision on NJNG's petition. The Board explained:

N.J.A.C. 14:7-1.4 . . . only requires Board approval

prior to the installation and/or operation of a pipeline in

excess of two-hundred fifty (250) psig if the proposed

pipeline alignment is planned to pass within one-

hundred (100) feet of any building intended for human

occupancy, and does not require the Board to conduct

an evidentiary hearing. Therefore, the Board's review

of the petition is narrow in scope, and it is only tasked

with determining whether the Project is in conformity

with [S]tate and federal natural gas pipeline regulations

and ensuring that the number of habitable dwellings

within one-hundred (100) feet of the Project is

3

This quote is the same as found in the current version of the New Jersey

Practice. See 37 N.J. Practice, Administrative Law & Practice § 4.7, at 185

(Steven L. Lefelt, Anthony Miragliotta, and Patricia Prunty) (2d ed. 2000)

(footnotes omitted).

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minimized. The Board is not tasked with making any

findings of fact or a determination as to whether the

Project is necessary.

Thus, without needing to address the other two questions set forth in the

Upper Freehold test, the Board classified NJNG's safety petition as an

uncontested case, which gave PPA no right to intervene or participate.

On appeal, PPA argues that the Board violated its constitutional due

process rights by classifying NJNG's safety petition as an uncontested case and

denying the motion to intervene. It claims a constitutional right to a hearing not

only to protect the Pinelands and its management program from inappropriate

development, but also to maintain a safe and secure environment for the

happiness of its own members. PPA relies on Article I, Paragraph 1 of the New

Jersey Constitution, which states that "[a]ll persons are by nature free and

independent, and have certain natural and unalienable rights," including

"enjoying and defending life and liberty, . . . protecting property, and . . .

pursuing and obtaining safety and happiness." N.J. Const. art. I, ¶ 1.

However, PPA's claim to a contested case classification for NJNG's safety

petition is critically undermined by its failure to raise a material issue of fact as

to the Board's actual review requirements in N.J.A.C. 14:7-1.4. "[I]t is the

presence of disputed adjudicative facts, not the vital interests at stake, that

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requires the protection of formal trial procedure" for due process. High

Horizons Dev. Co. v. State, Dep't of Transport., 120 N.J. 40, 53 (1990). See In

re NJPDES Permit No. NJ00025241, 185 N.J. 474, 486 (2006) ("There must

exist a dispute about adjudicative facts that affects the permit decision."). Our

Supreme Court has said that "[c]ontested cases are those in which the

Constitution or a statute requires an adjudicatory hearing" but "[i]t is only wh en

the proposed administrative action is based on disputed adjudicative facts that

an evidentiary hearing is mandated." Customer Lists, 106 N.J. at 517 (quoting

Texter, 88 N.J. at 384.)

N.J.A.C. 14:7 sets forth the "requirements that govern the construct ion,

operation and maintenance of intrastate transmission and distribution pipelines

for the transportation of natural gas by intrastate natural gas pipeline operators."

N.J.A.C. 14:7-1.1(a). The specific standard applied by the Board when

considering a petition filed by a utility company under N.J.A.C. 14:7-1.4 is

reflected in that regulation, which provides:

(a) No person shall install and/or operate a

natural gas pipeline with a maximum operating

pressure in excess of 250 psig within 100 feet of any

building intended for human occupancy . . . unless such

person has obtained prior Board approval of the

installation and/or operation of the pipeline.

....

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(c) A request for approval of the installation

and/or operation of a transmission pipeline shall be

subject to the requirements of 49 CFR 192, including

the requirements for passage of internal inspection

devices at 49 CFR 192.150, and for an integrity

management program in Subpart O, 49 CFR 192.901

through 192.951.

N.J.A.C. 14:7-1.4 therefore required the Board to determine only whether

the SRL project was in conformity with State and federal natural gas pipeline

regulations and with ensuring that the number of habitable buildings within 100

feet was minimized. That is, during its review of NJNG's safety petition, the

Board was simply "receiving general facts which [would] help it decide," using

its specialized expertise, whether the SRL pipeline met the technical State and

federal standards governing pipeline construction, operation and maintenance,

and a contested case hearing was not required. In re Application of N. Jersey

Dist. Water Supply Comm'n, 175 N.J. Super. 167, 203-04 (App. Div. 1980)

(stating "a hearing is not required when an agency is receiving general facts

which will help it decide questions of law, policy and discretion") (citing

Cunningham v. Dep't of Civ. Serv., 69 N.J. 13, 22 (1975)). Thus, even without

examining the other two parts of the test established in Upper Freehold, the

Board did not err by concluding that NJNG's safety petition was not a contested

case.

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Contrary to PPA's arguments, there are no environmental or threatened or

endangered species concerns, alternative routes issues, or CMP-related

compliance questions compulsory to the Board's review of NJNG's safety

petition pursuant to N.J.A.C. 14:7-1.4. 49 C.F.R. §§ 192.1 to 192.1013

"prescribe[] minimum requirements for the design and installation of pipeline

components and facilities. In addition, [that chapter] prescribes requirements

relating to protection against accidental overpressuring." 49 C.F.R. § 192.141.

Thus, the Board did not err by concluding that PPA was not entitled to intervenor

status to challenge NJNG's safety petition and raise issues of the SRL 's

compliance with the Pinelands Act and CMP Rules. Also, because PPA's stated

Pinelands, CMP-related, and environmental "interest[s]" were not "likely to add

constructively to the case without causing undue delay or confusion," N.J.A.C.

1:1-16.6(b), the Board did not err by concluding that PPA was not entitled to

participant status to challenge NJNG's safety petition.

Accordingly, we are satisfied that the Board's August 19, 2015

determinations to treat NJNG's safety petition as an uncontested case and to deny

PPA's motion for intervenor or participant status were not arbitrary, capricious,

or unreasonable. Therefore, we reject PPA's contentions on this point.

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III.

PPA next challenges the Board's January 28, 2016 decision granting

NJNG's safety petition. As it did in its appeal from the Board's approval of

NJNG's MLUL petition, PPA asserts that the Board's failure to address whether

the SRL project complied with the Pinelands Act and related CMP Rules

rendered its decision arbitrary and capricious. Specifically, PPA argues that the

SRL's proposed route did not comply with those statutory and regulatory

Pinelands' requirements, and that the Board's alternative route analysis was

incomplete and unreliable because it never considered the fact that the SRL

would be crossing two federal superfund sites, a federal military installation,

and the State-designated Pinelands Preservation Area.

PPA's arguments on this point lack merit for the reasons discussed in our

opinion concerning PPA's similar challenge to NJNG's MLUL petition. 4 Simply

stated, the Board had no authority to review NJNG's proposed construction for

compliance with the Pinelands Act, the CMP Rules, or with any other

environmental statutory scheme. Indeed, as we recently held in In re Petition of

S. Jersey Gas Co., 447 N.J. Super. 459, 482 (App. Div. 2016), only the

Commission has the expertise and exclusive legislative authority to decide

4

Docket Nos. A-3666-15 and A-3752-15.

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whether a pipeline project complies with the Pinelands Act and CMP Rules.

Therefore, we reject PPA's argument that the Board's decision on NJNG's safety

petition was arbitrary or unreasonable because the Board did not make

determinations on environmental issues that were within the Commission's

jurisdiction.

Moreover, the Board specifically stated in its January 28, 2016 opinion

that its decision to grant the safety petition "was subject to the approval of . . .

all other permits and approvals . . . ." This language sufficiently accounts for

the need for prior approval by the Commission. Just as importantly , the

Commission adopted a resolution on September 14, 2017 approving NJNG's

application to construct the pipeline in the Pinelands. Thus, there is no merit to

PPA's contention that the Board waived compliance with the Pinelands Act and

the CMP Rules.

All other arguments raised in this appeal, to the extent we have not

addressed them are with sufficient merit to be discussed. R. 2:11-3(e)(1)(E).

Affirmed.

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