N.J. Admin. Code § 7:26-1.7

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:26-1.7 - Exemption from SWF permitting

(a) Pursuant to N.J.S.A. 13:1E-4a, the Commissioner may exempt, from the requirement of Solid Waste Facility permitting as set forth in N.J.S.A. 7:26-2, and may grant a permanent or temporary certificate of authority to operate, with or without conditions, to these classes of solid waste collection or disposal facilities or operations which in the Commissioner's opinion meet the general and applicable specific criteria set forth in this section.

(b) The owner or operator of any facility or operation of a class exempted pursuant to this section shall comply with all conditions set forth in its certificate of authority to operate. Noncompliance with a certificate of authority to operate shall subject the holder to a penalty pursuant to 13:1E-9 and/or suspension or revocation of authority to operate.

1. The owner or operator of a facility for which authority to operate has been revoked or suspended shall be afforded the opportunity for a hearing pursuant to the Administrative Procedure Act, N.J.S.A. 51:14B-1 et seq., subsequent to the revocation or suspension. The request for a hearing shall be sent to the New Jersey Department of Environmental Protection, Office of Administrative Hearings and Dispute Resolution, ATTENTION: Adjudicatory Hearing Requests, 401 E. State Street, Mail Code: 401-07A, PO Box 420, Trenton, New Jersey 08625-0420.

2. In no way shall the granting of a temporary certificate of authority to operate be interpreted as entitling the holder to final registration and engineering design approval.

(c) General criteria for all exemptions:

1. Any exemption granted to a class of facilities or operations pursuant to this section shall be consistent with the purpose and intent of the Solid Waste Management Act, 13:1E-1 et seq.; and

2. No exemption shall be granted to a class of facilities or operations which will pose a threat to public health or the environment.

(d) This subsection sets forth the specific criteria for exempting sanitary landfills:

1. A certificate of authority to operate shall be granted to a sanitary landfill facility provided that:

i. The proposed owner or operator of the facility is determined by the Department, after a preliminary review of such information as the Department may require, to demonstrate sufficient integrity, expertise and competence to operate a sanitary landfill facility in compliance with the Solid Waste Management Act and the certificate of authority to operate;

ii. It would be possible for the facility to qualify for a registration pursuant to the Solid Waste Management Act:

iii. All preparatory work necessary to permit safe and environmentally sound operation can be accomplished prior to the commencement of operations at the site;

iv. Use of the facility prior to the time that a registration can be issued pursuant to N.J.A.C. 7:26-2 is essential in order to avoid a major disruption in the operation of one or more solid waste management plans or in order to comply with a judicial decree or statutory requirement to provide disposal facilities in a particular district; and

v. A schedule has been established and incorporated into the certificate of authority to operate for compliance with all the requirements for registration under N.J.S.A. 7:26-2. The schedule may call for accomplishing one or more registration requirements after commencement of facility operation.

(e) This subsection sets forth the specific criteria for exempting transfer stations.

1. A certificate of authority to operate shall be granted to a transfer station facility provided that:

i. The proposed owner or operator of the facility is determined by the Department, after a preliminary review of such information as the Department may require, to demonstrate sufficient integrity, expertise and competence to operate a transfer station facility in compliance with the Solid Waste Management Act and the certificate of authority to operate. Where this determination is made pursuant to 13:1E-135 and 7:26-16.5(c), the certificate of authority to operate shall not be issued for a period exceeding six months and may, in the Department's discretion, be renewed for one additional consecutive six month period;

ii. Use of the facility prior to the time that a registration can be issued pursuant to N.J.A.C. 7:26-2 is essential in order to avoid a disruption in the provision of solid waste disposal services, which disruption would be inconsistent with the purpose and intent of the Solid Waste Management Act and the District Solid Waste Management Plan;

iii. The facility will be designed, constructed, and operated in a manner consistent with the public health, safety and the environment under the circumstances. Notwithstanding any other requirement specified in Title 7 of the New Jersey Administrative Code, the facility requirements for design, construction and operation shall be those specified as conditions in the certificate of authority to operate; and

iv. A schedule has been established and incorporated into the certificate of authority to operate for compliance with all the requirements of N.J.A.C. 7:26-2 and 7:26-2B for registration of this facility or of an alternative facility (where the subject facility is designed for temporary operation only). The schedule may call for accomplishing one or more registration requirements after commencement of facility operation.

2. Notwithstanding any other provision of this chapter, the proposed owner or operator of the facility shall submit the following in application for a certificate of authority to operate a transfer station:

i. Where applicable, a disclosure statement pursuant to 13:1E-126 et seq. and N.J.A.C. 7:26-16 on such forms as the Department requires. The disclosure statement, where appropriate, should be accompanied by a written request for a temporary license pursuant to 13:1E-135 and 7:26-16.5(c).

ii. An emergency environmental and health impact statement pursuant to (e)3 below; and

iii. An engineering design which specifies the following:

(1) Site plan map including layout of the facility buildings or structures, profile and elevation views and interior floor plan;

(2) Access roads;

(3) Fencing;

(4) Scales, if required pursuant to 13:1E-117;

(5) On site queueing;

(6) Facility and equipment design sufficient to handle specified capacity;

(7) Facility construction plans;

(8) Washdown and control of wastewater;

(9) On-site drainage controls;

(10) Design and surfacing of on-site roadways;

(11) Operational safety and environmental monitoring procedures; and

(12) Housekeeping procedures such as litter, odor, dust and vector control.

3. Notwithstanding any other provision of this chapter, the following shall constitute the requirements for an emergency environmental and health impact statement for a transfer station meeting the exemption criteria in (e)1 above. An emergency environmental and health impact statement shall be in narrative form and must be approved prior to or concurrent with issuance of the certificate of authority to operate a transfer station. The environmental impact statement shall contain, at a minimum, the following:

i. A brief description of the land use of the area immediately surrounding the proposed facility;

ii. A description of possible environmental impacts on the immediately surrounding area and the facility design elements or other measures that will address them. This description shall address, at a minimum, the following environmental concerns:

(1) Noise;

(2) Air quality;

(3) Traffic;

(4) Stormwater and washdown drainage; and

(5) Any other concerns described in the solid waste disposal regulations, N.J.A.C. 7:26 which the Department determines should be discussed based upon the circumstances of the particular case, including time constraints.

4. The proposed owner or operator of the facility shall file copies of the applications for a certificate of authority to operate a transfer station, except for the disclosure statement, in the offices of the municipality and county in which the proposed facility is to be located on the same day such application is filed with the Department. The applicant shall also publish notice of the application, within five calendar days of filing the application, in a newspaper of general circulation in the municipality and county. After evaluating the emergent time constraints, the Department may require that the notice identify a public comment period and specify the address at which the Department will receive public comments.

(f) This subsection sets forth the specific criteria for exempting research, development and demonstration (RD & D) projects.

1. The Department shall issue a certificate of authority to operate an RD&D project provided the project is designed, constructed and operated in a manner consistent with environmental statutes applicable to the project, including, but not limited to, the Solid Waste Management Act, 13:1E-1 et seq., the Water Pollution Control Act, 58:10A-1 et seq., the Air Pollution Control Act, N.J.S.A. 26-2C-1 et seq., and the rules adopted thereunder, and any permits or orders issued pursuant thereto. The project shall be constructed and operated in accordance with the specific conditions of the certificate of authority to operate.

2. A certificate of authority to operate shall be granted for an RD & D project which meets the following criteria for exemption:

i. The RD&D project consists of a new or innovative technology or a new or innovative operational process modification made to an existing solid waste facility or operation;

ii. The RD&D project is for a fixed period of time not to exceed one year, unless the RD&D applicant can demonstrate to the satisfaction of the Department that a longer time period is required to adequately assess long term environmental impacts and operational effects of the technology or process being evaluated. In no case shall the duration of the certificate extend beyond five years;

iii. The RD&D project will operate within the Department's standards for air emissions including noise and fugitive dust, water discharges to surface or ground waters and soil quality;

iv. The RD&D project has a design capacity of less than 100 tons per day of any waste or material, unless otherwise approved by the Department;

v. The RD & D project is consistent with any applicable Solid Waste Facility Performance Partnership Agreement established pursuant to 7:26-2.14 or Silver Track II Covenant established pursuant to N.J.A.C. 7:26-2C and is not deemed to be a material and significant alteration or addition to the existing facility as set forth at 7:26-2.6(a)4.

3. A certificate of authority to operate an RD&D project shall not be issued to a demonstrated technology or operation, to a project that would cause an exceedance of air emissions, water quality or soil standards or criteria or be deemed to cause an unacceptable risk to human health and the environment.

4. The RD & D project shall be included by administrative action within the district solid waste management plan for the county or district within which the project is located or the Statewide Solid Waste Management Plan.

5. The owner and/or operator of a proposed RD & D project shall submit an application to the Department that includes:

i. The location of the RD&D project, including a site plan map;

ii. A description and process flow diagrams of the proposed project;

iii. The proposed duration of the project, including a start and end date;

iv. An outline of the need for the project;

v. A description of the information or improved operation that this project will provide and/or a description of the data gaps this project will fill;

vi. A description of the improved environmental effectiveness and/or the economic efficiency of the solid waste facility or operations that will be demonstrated;

vii. The operational procedures to minimize, control and mitigate impacts such as noise, air quality, traffic, and stormwater runoff;

viii. A description of the sampling and analytical plan of he material and process being demonstrated and the potential air, water or soil emissions or discharges;

ix. A description of the quality assurance/quality control plan for the overall demonstration and the sampling and analytical plan; and

x. A copy of the written approval issued by the designated plan implementation agency which indicates that the project is included by administrative action within the district solid waste management plan for the county/district within which the project is located or as determined by the Department to be consistent with the Statewide Solid Waste Management Plan.

6. The Department may require additional information to establish a demonstration project in order to ensure that the proposed project will meet the requirements of (f)1 and 2 above.

7. The RD&D applicant shall submit semi-annual reports detailing the progress of the RD&D project. A final report addressing the specific goals for the project shall be submitted to the Department. The requirements for the semi-annual and final report shall be set forth in the conditions of the certificate of authority to operate.

8. The Department shall issue a certificate of authority to operate the RD&D project or deny the application for a certificate of authority to operate for an RD&D project, in writing to the applicant, within 90 days of receipt of a complete application.

9. The Department shall order the immediate termination of all operations at a RD&D project if it determines that the RD&D project is operating in contravention of the criteria set forth in (f)2 above, any applicable SWFPPA, or that termination is necessary to protect human health and the environment. The owner or operator of the RD&D project shall be provided the opportunity for a hearing on the termination within 20 days of issuance of the order to terminate.

10. At the end of the RD&D project and if the RD&D Certificate of Authority to Operate for a new or innovative technology or operation is not terminated as set forth in (f)9 above, the owner and/or operator of an RD&D project shall be required to obtain a SWF permit or a permit modification pursuant to N.J.A.C. 7:26-2, or a recycling approval pursuant to N.J.A.C. 7:26A-3, as applicable.

(g) This subsection sets forth the specific criteria for exempting beneficial use projects.

1. The Department shall issue a certificate of authority to operate for a beneficial use project, provided the project is designed and managed in a manner consistent with the environmental statutes applicable to the project, including, but not limited to, the Solid Waste Management Act, 13:1E-1 et seq., the Water Pollution Control Act, 58:10A-1 et seq., the Air Pollution Control Act, N.J.S.A. 26-2C-1 et seq., and the rules adopted thereunder, and any permits or orders issued pursuant thereto. The project shall be developed and operated in accordance with the specific conditions of the certificate of authority to operate.

2. This subsection is not applicable to materials produced by a recycling center as approved pursuant to N.J.A.C. 7:26A. The materials produced at a permitted recycling center as regulated pursuant to N.J.A.C. 7:26A are deemed to be approved for beneficial use provided the recycled product is used or reused directly as a product or as a substitute for raw material that is incorporated into a product that meets the generally accepted products specifications and standards for a similar manufactured product or raw material, and provided the recycled product poses no greater risk to human health or the environment than the use of the product or raw material it is replacing.

3. This subsection is not applicable to materials used or reused directly as a product or as a substitute for raw material which is incorporated into a product that meets the original product specifications, provided the material poses no greater risk to human health or the environment than the use of the product or raw material it is replacing.

4. The following materials are categorically approved for beneficial use and require no future approval or authorization for use or reuse provided they are used or reused in a manner consistent with 7:26-1.1:

i. (Reserved);

ii. Uncontaminated glass used as a substitute for conventional aggregate in asphalt or concrete applications;

iii. Tire chips as aggregate for road base materials or asphalt pavements in accordance with New Jersey Department of Transportation standard specifications, or whole tires or tire chips when used for energy recovery;

iv. Soils for on-site reuse that contain contaminants at levels below the most stringent site clean-up levels established by the Department for a specific site, except for sites located in the Pinelands Area;

v. Contaminated soil that has been decontaminated to the satisfaction of the Department and is used or reused in a manner acceptable to the Department;

vi. Nonhazardous solid waste, paper mill fiber (fiber from either virgin pulp or recycled paper mills) or paper fiber combustion ash (ash produced by incineration of paper mill fiber and paper de-inking sludge by-products) approved in advance by the Department for use or reuse as cover material, landfill liner, cap material, or other landfill design and management components;

vii. Coal combustion bottom ash or paper fiber combustion ash (ash produced by incineration of paper mill fiber and paper de-inking sludge by-products) used or reused as a component in the manufacture of roofing shingles or bituminous asphalt products;

viii. Coal combustion fly ash, gas scrubbing by-products or paper fiber combustion ash (ash produced by incineration of paper mill fiber and paper de-inking sludge by-products) used or reused as an ingredient to produce light-weight block, light-weight aggregate, manufactured gypsum or manufactured calcium chloride;

ix. Coal combustion fly ash, coal combustion bottom ash or paper fiber combustion ash (ash produced by incineration of paper mill fiber and paper de-inking sludge by-products) used or reused as a cement or aggregate substitute in structural concrete, structural concrete products, or a raw feedstock in the manufacture of cement or as a cement substitute for structural grade products, or subbase in roadway construction; or

x. Coal combustion fly ash, coal combustion bottom ash or paper fiber combustion ash (ash produced by incineration of paper mill fiber and paper de-inking sludge by-products) used or reused to serve as an aggregate substitute in structural asphalt product.

5. The generator and/or owner who originally produced the material under consideration for use in a beneficial use project in the State of New Jersey shall submit an application to and receive a certificate of authority from the Department prior to any sale, distribution, shipment of the material to any person or implementation of the beneficial use project. The application shall include the following:

i. A description of the beneficial use project including:

(1) The specific location of the site of origin of the material to be beneficially used, including a description of the location of the material at the site of origin;

(2) A general description of the site of origin of the material to be beneficially used, including its current use or activity and its historical uses and a discussion of the reasons for creating or excavating the material at the site of origin, the dates of material generation, and the process by which the material was generated;

(3) A description of any regulatory activity at the site of origin undertaken by the Department or any other agency;

(4) A description of any regulatory activity at the site of destination undertaken by the Department or any other agency; and

(5) The quantity of material for the beneficial use project;

ii. A site location map where the material are to be used plotted on a USGS topographic map. The site plan map shall, at a minimum, indicate wetlands, tidal water limits, and the depth to the mean seasonal high ground water table across the entire site;

iii. A site location map of the site of origin plotted on a USGS topographic map;

iv. A description of the material, including a contaminant profile including, but not limited to, the following:

(1) An evaluation of the general quality of the material including a contaminant profile of the material in relation to current Department soil cleanup criteria (SCC) guidance levels and other standards as specified by the Department on a case-by-case basis, and in accordance with the sampling, quality assurance, analytical and other technical requirements of N.J.A.C. 7:26E, and/or other guidance as specified by the Department;

(2) A narrative description of the characteristics of the material and all sampling conducted in relation to the material. Material Safety Data Sheets (MSDS), all studies or analytical characterizations performed by any person on the material, and any other material specification information shall be included;

(3) Documentation of all contaminants and their concentrations of any such contaminants contained in the material in comparison to current Department SCC guidance levels, or as specified by the Department pursuant to (g)5iv(1) above, sampled and analyzed in accordance with N.J.A.C. 7:26E or as otherwise specified by the Department on a case-by-case basis, including field observations and all available field analytical data. The documentation shall include the results of all samples (screening, post-excavation, and waste pile/classification) collected during investigation of the area, excavation, or generation of the material including all historical analyses;

(4) The concentration limits for contaminants in the material during the proposed use or reuse and the rationale for those limits, and a description of the quality assurance procedures that will be used to monitor material produced in the future for use or reuse;

(5) A scaled site map depicting all sample locations and the location of the proposed use or reuse of the material; and

(6) A determination of the waste classification of the material and the rationale used for that classification;

v. Copies of the analytical package (chain of custody, sampling methods, QA/QC data) used to evaluate the material;

vi. A description of any treatment undertaken prior to the use of the material;

vii. A description of the measures to be taken during handling and transportation of the material to minimize environmental and human health impacts;

viii. The schedule for initiation and completion of the beneficial use project; and

ix. The generator and/or owner who originally produced the material shall provide the Department with evidence that the material provides a beneficial use either as a raw material or directly as a product in the uses to which it is applied. The material must be able to meet the same general physical character and chemical composition that is consistently equivalent to or exceeds the character and composition of the intentionally-manufactured product that it is replacing unless the applicant demonstrates to the Department's satisfaction that the material will not pose a greater risk to human health or the environment than the use of the product or raw material it is replacing.

6. The Department may require additional information in order to ensure that the proposed in-State beneficial use project will meet the requirements of (g)1 and 2 above.

7. The Department shall issue a certificate of authority to operate for a beneficial use project in the State of New Jersey or deny the application for a certificate of authority to operate for a beneficial use project in the State of New Jersey, in writing to the applicant, within 90 days of receipt of a complete application.

8. The New Jersey generator and/or owner who originally produced the material considered for a beneficial use project outside the State of New Jersey shall submit an application to the Department that includes the following:

i. Documentation in the form of a letter to the Department from the applicant certifying that the material has been analyzed or is known, in accordance with N.J.A.C. 7:26G-5, not to contain contaminants that would cause the material to be classified as hazardous waste;

ii. Documentation in the form of a letter to the Department from the receiving facility stating that its owner agrees to accept the specified amount of material and indicating the receiving facility owner's intention to beneficially use or reuse the material and the time frame for such activity from the date of receipt of the material at the facility;

iii. Documentation from the applicant that the information required at (g)8ii above has been sent to the Solid Waste Coordinator of the county of the material's origin;

iv. A letter from the appropriate regulatory agency of the state where the receiving facility is located verifying that the facility is operating in accordance with all applicable rules and regulations and can lawfully accept the material for the declared use or reuse purpose and a current copy of the receiving facility's authorization to operate (that is, a permit);

v. Evidence that the material provides a beneficial use either as a raw material or directly as a product in the uses to which it is applied. The material must be able to meet the same general physical character and chemical composition that is consistently equivalent or exceeds the character and composition of the intentionally manufactured product it is replacing. The beneficial use of the material shall not cause harm to human health and the environment; and

vi. Any additional information required by the Department to ensure that the proposed beneficial use project will meet the requirements of this section.

9. The Department shall either issue to the New Jersey generator and/or owner a certificate of authority to operate for an out-of-State beneficial use project or deny a certificate of authority to operate for an out-of-State beneficial use project, in writing to the applicant, within 45 days of receipt of a complete application.

10. The generator and/or owner who originally produced the material for use in a beneficial use project shall submit, on an annual basis, a report to the Department detailing the amount of material used, the date(s) of such use, the location(s) of the use, and any other information as required by the Department in the certificate of authority to operate.

11. The Department shall order an immediate termination of all operations related to a beneficial use project if it determines that termination is necessary to protect human health and the environment. The generator and/or owner who originally produced the material for use in a beneficial use project shall be provided the opportunity for a hearing on the termination within 20 days of issuance of the order to terminate.

N.J. Admin. Code § 7:26-1.7

Amended by 47 N.J.R. 991(a), effective 5/18/2015.

Administrative Change, 55 N.J.R. 528(a), effective 2/23/2023