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In re Issuance of Hazardous Waste Facility Permit No. 0901 D21HP01

Decided: July 20, 1992.

IN THE MATTER OF THE ISSUANCE OF HAZARDOUS WASTE FACILITY PERMIT NO. 0901D21HP01 BY THE DEPARTMENT OF ENVIRONMENTAL PROTECTION TO ICI AMERICAS, INC.


On appeal from Department of Environmental Protection.

Shebell, Skillman and D'Annunzio. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

The issue presented by this appeal is whether under the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, and regulations adopted thereunder, the operator of a hazardous waste facility may construct a new incinerator without submitting an Environmental Impact Statement (EIS) to the Department of Environmental Protection (DEP).

ICI Americas, Inc. (ICI) has operated a factory in Bayonne since 1965 which produces a Teflon-like plastic sold under the trade name "Fluon." For a substantial period of time, ICI has stored the waste generated by this production process in a 55,000 gallon storage container and disposed of it by means of a hazardous waste incinerator. Since ICI constructed its storage container and incinerator prior to the enactment of the SWMA, it was not required at that time to obtain a waste facility permit from the DEP.*fn1 However, after the enactment of the SWMA, the Federal Resource Conservation and Recovery Act (RCRA),

§ 42 U.S.C.A. § 6901 to § 6992k, and administrative regulations implementing these legislative enactments, ICI was required to obtain such a permit. Consequently, on March 21, 1984, the DEP directed ICI to submit a complete New Jersey Hazardous Waste Facility Permit Application for its storage container and incinerator. ICI submitted this application on September 21, 1984, but did not furnish other necessary documents until September 15, 1987.

On September 29, 1988, ICI submitted a second application seeking authorization to construct a new and substantially larger incinerator. ICI indicated that a new incinerator was needed because it was expanding its production facilities, which would result in increased waste generation and thus a need for increased incinerator capacity. However, ICI did not submit an EIS with this application and a member of the public raised a question regarding this omission during the comment period. In response, the DEP stated that ICI was not required to submit an EIS under the applicable administrative regulations, because "the facility in question is not a new facility . . . [and] . . . the facility is not applying for a modification or revocation and reissuance of a permit."

On November 8, 1989, ICI withdrew its initial permit application for the existing incinerator but continued its second application for the new incinerator. On March 15, 1990, the DEP issued a final hazardous waste facility permit to ICI, which granted ICI's second application to construct and operate the new incinerator.

Appellants filed a notice of appeal from DEP's decision to issue a hazardous waste facility permit to ICI without requiring an EIS. We reverse.

The SWMA requires any party who proposes to construct, acquire or operate a solid waste management facility to prepare an EIS. N.J.S.A. 13:1E-26 provides in relevant part:

Prior to the construction, acquisition, or operation of any solid waste facility, . . . the person proposing the ...


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