On appeal from State of New Jersey, Department of Environmental Protection.
King, Shebell and Baime. The opinion of the court was delivered by Baime, J.A.D.
These consolidated appeals present difficult questions arising under the Solid Waste Management Act (N.J.S.A. 13:1E-1 to -198) and the Air Pollution Control Act (N.J.S.A. 26:2C-1 to -36). The principal issue pertains to the scope and applicability of regulatory procedures adopted by the Department of Environmental Protection (DEP) for the modification of previously issued solid waste permits. Additional issues are raised relating to the standards to be applied in determining whether proposed air emission technology satisfies "state-of-the-art" and "advances in the art" criteria set forth in N.J.S.A. 13:1E-168a(2) and N.J.S.A. 26:2C-9.2(c), respectively. The final question concerns the extent to which an engineering design submission must identify disposal locations and facilities for hazardous and non-hazardous residues and bypassed materials under N.J.A.C. 7:26-2.6.
Appellants, three Burlington County municipalities, challenge the action of the DEP issuing permits to the Pennsauken Solid Waste Management Authority (Authority) approving various aspects of the construction of a resource recovery facility to be built on a 3.3 acre undeveloped site in an industrial area. The facility is to be constructed within the confines of a 153 acre
sanitary landfill in which non-hazardous residues and bypassed material will be disposed. As proposed, the facility will have the capacity to process approximately 500 tons per day of solid waste material and will produce electrical energy to be purchased by power companies.
We will subsequently describe the arguments advanced by appellants in greater detail. Suffice it to say here, they assert that (1) the solid waste permit issued by the DEP and its approval of the Authority's Environmental and Health Impact Statement (EHIS) were faulty because the impact of air pollution control technology later required by the federal Environmental Protection Agency (EPA) was not analyzed and that this defect cannot be cured by way of the modification procedures provided by N.J.A.C. 7:26-2.6, (2) the air pollution control permit was improperly granted because it fails to require installation of "state-of-the-art" and "advances in the art" technology designed to yield the most stringent emission limit for nitrogen oxides as mandated by statute and regulation and (3) the Authority's identification of disposal alternatives for ash residuals generated by the facility does not satisfy the content requirements contained in DEP regulations. Although appellants purport to appeal from the issuance of three permits,*fn1 only two are actually challenged. Specifically, appellants attack the DEP's issuance of the solid waste permit and the air pollution control permit. The NJPDES permit issued by the DEP is not implicated in this appeal.
We have carefully reviewed the voluminous record and find no merit in the contentions advanced. We are thoroughly convinced that the DEP complied meticulously with all federal and state statutory and regulatory provisions. Although the
air pollution control technology designed to reduce NO[x] emissions which the Authority now proposes to install was not evaluated when the DEP issued the solid waste permit, we are of the view that the modification procedures provided by N.J.A.C. 7:26-2.6, if properly applied, constitute sufficient safeguards and adequately protect the public interest. We are also satisfied that the DEP fairly applied appropriate statutory and regulatory standards in issuing the air pollution control permit. Finally, we find no basis for disturbing the DEP's conclusion that alternative residual landfills and facilities were adequately identified. We affirm.
The salient facts are not in dispute and are essentially a matter of public record. The chronology of events is important to an understanding of the issues raised. On January 13, 1987, the Authority submitted a solid waste facility application package consisting of an engineering design proposal and an EHIS to the DEP. Additional applications for modification of the Authority's existing NJPDES permit and for an air pollution control permit were filed simultaneously. The air pollution control permit sought by the Authority consists of two components. The State component consists of an authorization to construct or install control apparatus or equipment and a separate permit to operate such devices. The federal component consists of a prevention of significant deterioration permit (PSD).
These applications were distributed to various federal, State and local agencies for their evaluation. After requesting and receiving additional information and requiring modifications of the proposal, the DEP directed the Authority to respond to all agency review comments received. In December of 1987, the DEP tentatively approved the three permits requested pursuant to N.J.S.A. 13:1E-5.1. Concurrently, the DEP issued draft
solid waste, air pollution control and NJPDES permits and solicited public comment.
We need not recount at length the protracted hearings that followed. It is enough to note that approximately 122 people gave oral testimony and written comments were received from several hundred individuals and organizations.
Finally, on June 30, 1988 the DEP issued a voluminous report responding in great detail to all written and oral comments received. On the same date, the DEP approved the Authority's EHIS and granted the permits requested.
As designed and as approved, it was envisioned that the facility would process much of Camden County's solid waste, reducing materials by combustion to ash residue. Approximately 150 tons of ash residue are to be produced on a daily basis. From this residue, ferrous metals will be removed for resale. The remaining ash will be stored prior to testing and will ultimately be disposed, along with bypassed materials and non-combustibles, in a sanitary landfill adjacent to and surrounding the facility. Hazardous waste is to be shipped to out-of-state facilities.
Under the solid waste permit and the air pollution control permit originally issued by the DEP, the Authority was obliged to take extensive measures to reduce the emission of contaminants. Air pollution control devices were to include auxiliary natural gas fired burners in each furnace, various types of dry scrubbers and fabric filter baghouses. Each furnace was to be equipped with an auxiliary burner to insure that combustion gas temperatures would be constantly maintained at levels that will efficiently burn toxic and odorous air contaminants. The flue gas was to be fed into autonomous dry scrubbers where an aqueous lime slurry would be injected so as to react with certain acid components, thereby forming calcium salts that were to exit as particulate matter. After leaving the dry scrubbers, the gas was to pass through a fabric filter baghouse which would collect all particulate matters that, in turn, would
be conveyed to the ash removal area for analysis and disposal. The clean flue gas would then exit the baghouse and enter a single 285 foot stack from which it would be discharged.
Significantly, the proposed facility approved by the DEP did not provide the latest or most advanced technology designed to control and reduce NO[x] emissions. This omission is critical to an understanding of the issues raised because appellants contend that it fatally marred the permitting process.
Immediately following the DEP's issuance of the solid waste permit and the air pollution control permit, appellants filed an appeal to this court and simultaneously petitioned the Administrator of the Environmental Protection Agency (EPA) to administratively review the facility's federal air permit, the PSD. See 40 C.F.R. 124.19. In its petition, appellants contended that the facility's proposed NO[x] pollution controls were not sufficiently stringent to satisfy federal emission standards. While we will describe the concept in greater detail later in our opinion, appellants asserted that the facility's proposed NO[x] emission control apparatus did not satisfy the "Best Available Control Technology" (BACT) standard required by the federal Clean Air Act (42 U.S.C. § 7401 et seq.) and applicable regulations.
On December 10, 1988, the EPA issued an order remanding the matter to the DEP for further proceedings. In its accompanying opinion, the EPA determined that the BACT analysis of NO[x] emissions by the DEP was inadequate. The EPA found that the Authority failed to sustain its "burden of showing that an emission limitation based on combustion controls alone," as proposed in the design approved by the DEP, satisfied the BACT requirement. The DEP was directed to reopen the permit proceeding "for the limited purpose of allowing the [Authority] to supplement its original BACT analysis. . . ." The DEP was not precluded from determining that "combustion controls alone represent BACT." Rather, it was directed to take additional evidence on the subject and "reissue the permit as written" if it determined that combustion represented the
best achievable technology to minimize NO[x] emissions. Conversely, the EPA authorized the DEP to "revise the limitations and other conditions of the permit as appropriate" if it found that other technology satisfied the BACT mandate.
Pursuant to the remand order, the facility vendor submitted a lengthy revision of the BACT analysis for NO[x]. That report proposed installation of an innovative control technology known as Thermal De-NO[x] designed to reduce NO[x] emissions. The Thermal De-NO[x] method, technically designated as "selective non-catalytic reduction," reduces NO[x] to nitrogen and water vapor by injecting ammonia directly into the furnace. Although another technology, selective catalytic reduction, theoretically provides a 90 to 95 percent NO[x] removal efficiency, and was considered by the DEP, it is apparently not in use in the United States. The DEP thus determined that Thermal De-NO[x], which has a 30 to 60 percent NO[x] removal efficiency and which is presently used elsewhere in the United States, ...