13:1E-60 Construction of major hazardous waste facility; registration statement and engineering design; review; approval; findings; fees; exemptions.

12. a. No person shall commence construction of any major hazardous waste facility on or after the effective date of this act unless that person shall have obtained the approval of the department for the registration statement and engineering design for such facility prior to construction thereof.

b. The department shall review all applications for registration statements and engineering designs for new major hazardous waste facilities. The review shall include the evaluation of an environmental and health impact statement, which statement shall be prepared by the commission at the applicant's expense.

In addition to all other standards and conditions pertaining to an application for registration and engineering design approval, no such approval shall be granted by the department for a new major hazardous waste facility unless the department finds that:

(1) (Deleted by amendment, P.L.1983, c. 392);

(2) The environmental and health impact statement shows that the location and design of the proposed facility will pose no significant threat to human health or to the environment if properly managed in accordance with all relevant federal and State laws and all rules and regulations adopted pursuant thereto; and

(3) The proposed facility would be operated by the proposed operator on a site designated by the commission for that particular type of major hazardous waste facility.

c. The provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), or any other law to the contrary notwithstanding, the review of all applications for registration and engineering design approval for new major hazardous waste facilities shall be conducted in the following manner:

(1) Not less than 90 days prior to filing an application for registration and engineering design approval, the applicant shall submit to the department and the governing body of the affected municipality a letter of intent to apply for registration and engineering design approval, and a brief description of the nature of the proposed facility;

(2) (Deleted by amendment, P.L.1983, c.392);

(3) The department shall transmit, by certified mail, a complete copy of any application submitted pursuant to this subsection to the governing body, board of health, planning board and environmental commission of the affected municipality;

(4) Within 6 months of the receipt of such notice, the affected municipality shall conduct and transmit to the department a review of the proposed facility and operator, including a site plan review conducted in the manner provided by the "Municipal Land Use Law," P.L.1975, c.291 (C. 40:55D-1 et seq.). The cost of the municipal review shall be borne by the applicant, except that such cost shall not exceed $15,000.00 per application. In preparing this review, the affected municipality may request and receive any reasonable and relevant information from the applicant or the department;

(5) Within 8 months of the receipt of a complete application, the department shall reject the application or grant tentative approval thereof, which tentative approval shall establish design and operating conditions for the proposed major hazardous waste facility, requirements for the monitoring thereof, and any other conditions required under State rules and regulations;

(6) All tentative approvals of applications granted pursuant to this subsection shall be transmitted to the applicant and to the affected municipality and shall be accompanied by a fact sheet setting forth the principal facts and the significant factual, legal, methodological, and policy questions considered in granting the tentative approval. The fact sheet shall include a description of the type of facility or activity which is the subject of the tentative approval; the types and quantities of wastes which are proposed to be treated, stored, or disposed of at the proposed facility; a brief summary of the basis for the conditions of the tentative approval; the environmental and health impact statement prepared for the proposed facility and a summary as to how the statement demonstrates that the proposed facility, subject to such conditions as may have been imposed, would not create a significant adverse impact upon the public health or the environment, and, in the event that the granting of the tentative approval is contrary to the findings of the municipal review of the application, the department's reasons for the rejection of those findings;

(7) Within 45 days of the granting of a tentative approval of an application, an adjudicatory hearing on the proposed facility and operator shall be conducted by an administrative law judge. The affected municipality shall be a party of interest to such hearing, and shall have the right to present testimony and cross-examine witnesses. Intervention in this hearing by any other person shall be as provided in the "Administrative Procedure Act" ;

(8) Within 30 days of the close of such hearing, the administrative law judge shall transmit his recommendations for action on the application to the department. The judge shall not recommend approval of an application unless he finds clear and convincing evidence that the disclosure statement and application for a registration statement establish that the owner and operator of the proposed facility possess sufficient financial resources to construct, operate, and guarantee maintenance and closure of the facility, and that the facility will not constitute a substantial detriment to the public health, safety and welfare of the affected municipality; and

(9) Within 60 days of the receipt thereof, the department shall affirm, conditionally affirm or reject the recommendations of the administrative law judge and grant final approval to or deny the application. Such approval or denial of an application by the department shall be considered to be final agency action thereon for the purposes of the "Administrative Procedure Act," and shall be subject only to judicial review as provided in the Rules of Court.

If the department fails to act upon the recommendations of the administrative law judge as required by this subsection, the failure shall constitute departmental affirmance of the recommendations.

d. The department may charge and collect, in accordance with a fee schedule adopted as a rule and regulation pursuant to the "Administrative Procedure Act," such reasonable fees as may be necessary to cover the costs of reviewing applications pursuant to this section.

e. The department may, upon request of an owner or operator and after public hearing, exempt a major hazardous waste facility below a certain size or of a particular type from being considered a major hazardous waste facility for the purposes of this section, provided that such exemption is consistent with the eligibility standards contained in rules and regulations adopted by the commission.

f. In the event that any application reviewed by the department pursuant to this section is for a registration statement and engineering design approval for a proposed major hazardous waste facility on a site located in more than one municipality, the notices required herein shall be transmitted to each affected municipality or agency thereof, the municipal review of the proposed facility and operator shall be conducted jointly by all of the affected municipalities, and all of the affected municipalities shall be considered a single party for the purposes of the adjudicatory hearing held pursuant to this section.

L.1981, c.279, s.12; amended 1983, c.392, s.12; 2007, s.39, s.24.