N.J. Admin. Code § Tit. 7, ch. 7, att. G
All persons producing structural or nonstructural fill, manufactured soil, or using (refer to Chapter 5 of this appendix), processing, or transferring dredged materials in New Jersey must obtain an Acceptable Use Determination (AUD) from the Department as outlined below prior to any use, processing, or transfer of the dredged material or products containing dredged material. The process for obtaining an AUD for dredged material from the tidal waters of the State of New Jersey and adjacent interstate waters is as follows:
I. GLOSSARY of TERMS
The following terms as defined herein are applicable to this attachment of the appendix.
A. "Acceptable use" means the use that is determined by the Department as appropriate for the dredged material, admixture, or product that will be protective of human health and the environment and is consistent with the requirements of Section II.C below.
B. "Acceptable use site" means the site at which the dredged material, admixture, or product is used directly as a replacement for a generally-accepted and similarly-manufactured product, or as raw material to make such a product.
C. "Acceptable use project" means the acceptable use site of dredged material, admixture, or product, or a dredged material processing facility, as authorized pursuant to an AUD.
D. "Admixture" means the materials that are blended with dredged material to produce a product.
E. "Dredged material processing facility" means the site at which dredged material is directly transferred, or is blended with admixtures and then transferred, to another facility or site for direct use or further processing.
F. "Owner/operator" means the individual, trust, firm, joint stock company, Federal agency, corporation (including a government corporation), corporate official, partnership, association, State, municipality, commission, political subdivision of a state, or any interstate body to which an AUD is issued.
G. "Product" means the manufactured soil, structural or nonstructural fill, or other material, produced by the processing of dredged material with admixtures, that meets the specifications and standards for generally-accepted and similarly-manufactured products or raw materials used in the economic mainstream, for which the product is used as a replacement.
II. AUTHORITY and CONSTRUCTION
A. The Department will issue an AUD for dredged material in conjunction with the waterfront development permit for a specific dredging project or dredged material processing facility provided the acceptable use project is designed and managed in a manner consistent with all of the environmental statutes applicable to the project including, but not limited to, the Water Pollution Control Act (58:10A-1 et seq.), the Waterfront Development Act (12:5-3 et seq.), the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11 et seq.), the Solid Waste Management Act (13:1E-1 et seq.), any other applicable statutes, the rules and regulations adopted thereunder, and any permits or orders issued pursuant thereto. Each AUD proposal will be evaluated on a case-by-case basis.
B. An AUD shall only be issued for acceptable use projects that use:
1. Dredged material from the tidal waters of the State of New Jersey, which shall include adjacent interstate waters.
2. Materials that are not hazardous wastes pursuant to the New Jersey Hazardous Waste Regulations at N.J.A.C. 7:26G.
3. Materials that do not contain polychlorinated biphenyls (PCB) regulated pursuant to the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.
C. The dredged material will be considered for an AUD provided the dredged material, and each admixture used at the acceptable use project, are used directly as a substitute for a product or as a substitute for an admixture that is incorporated into a product. The dredged material-based products and admixtures must meet the specifications and standards for a generally-accepted and similarly-manufactured product or raw material.
D. Any waste, residual material, by-product, or any material contaminated above the Department's most restrictive contaminant classification criteria, that is delivered to an acceptable use project either for incorporation into product or that is not incorporated into the product but is used in some manner at the project, must be authorized in advance for such use pursuant to the regulations for beneficial use of solid wastes at 7:26-1.7(g), or must be fully managed in transit to and at the project as solid waste pursuant to the Solid Waste Management Act, 13:1E-1 et seq.
III. Application Process
A. The applicant for an AUD shall submit the following information with the waterfront development permit application, or the application for modification of said permit:
1. A description of all admixtures to be combined with the dredged material at the acceptable use project, and any products produced, including:
(a) The specific location of the site of origin of each admixture;
(b) The quantity of each admixture used, and the specific ratios of admixtures used to dredged material. The quantities of admixtures, dredged material, and products used or produced on a daily basis shall be included. Ranges of ratios and variability in production levels shall also be included;
(c) Evidence that the dredged material, and each admixture used for the acceptable use project, are used directly as a product or as a substitute for raw material that is incorporated into a product that meets the specifications and standards for a generally-accepted and similarly-manufactured product or raw material, which shall include a thorough description of the purpose for use of any materials other than dredged material;
(d) A general description of each admixture, including its current and historical uses, the reason for generating the admixture, the date of generation, and the specific process by which the admixture was generated;
(e) A contaminant profile and an evaluation of the general quality of all dredged material, admixtures, and all products produced in accordance with the AUD including, but not limited to, the following as are necessary as determined by the Department on a case-by-case basis:
i. A contaminant profile in relation to current Department soil cleanup criteria (SCC) guidance levels and other evaluation requirements, such as those procedures specified at Attachments A and B in the appendix and as specified by the Department as dependent on the proposed acceptable use on a case-by-case basis;
ii. Physical characteristics including grain size;
iii. Total organic carbon (TOC) and total petroleum hydrocarbon (TPH);
iv. All sampling and analyses shall be conducted in accordance with a Department-approved sampling and testing plan, quality assurance, analytical, and other technical requirements of Attachments A and B of this appendix, and as otherwise specified by the Department;
v. A narrative description of the characteristics of the admixtures and all sampling conducted in relation to the admixtures. Material Safety Data Sheets (MSDS), all studies or analytical characterizations performed by any person on the admixture, results of all testing (screening, post-excavation and bulk material) collected during investigation of the area of excavation, or other generation, of the admixture, all historical analyses, and any other material specification information shall be included;
vi. The concentration limits for contaminants in the product for the proposed acceptable use, and if different at any stages of intermediate storage or processing, and the rationale for those limits, and a description of the testing and quality assurance procedures that will be used to monitor the product produced in the future;
vii. A scaled site map depicting the site of origin of all admixtures and all sample locations of admixtures and products, as applicable;
viii. A determination of the waste classification of the admixtures and the rationale used for the classifications; and
ix. A full laboratory deliverable package (chain of custody, sampling methods, and QA/QC data) used to evaluate the dredged material and admixtures;
(f) A description of any past or ongoing regulatory activity undertaken by the Department or any other agency at the site of origin for each admixture;
(g) A description of any treatment or processing of the dredged material, admixtures, and product undertaken prior to shipment to the acceptable use project;
(h) A description of the measures to be taken during all stages of the acceptable use project including handling, storage, transportation, management, and application of the dredged material, admixtures, and product to minimize or eliminate environmental and human health impacts;
(i) A description of the design capacity of the acceptable use project, setting forth the number and types of all vehicles containing admixtures, product, or other materials arriving at and leaving the project on a daily basis, stating the maximum number of vehicles per hour that will arrive at and leave the project site(s);
(j) A narrative describing the acceptable use project's operations from the receipt of dredged material and admixtures describing how those materials are contained, through processing, management, and/or transfer to the material's destination at each stage of the project. The narrative must clearly demonstrate how containers of dredged materials, admixtures, and product will be managed and that the employees, the public, or the environment will not be exposed to dredged materials, admixtures, and product except as allowed in accordance with the AUD; and
(k) The hours of operation of the acceptable use project;
2. A description of the acceptable use project including:
(a) Photocopies of documents as evidence of all authorizations and permits for siting, construction, and operation of the acceptable use project, and evidence of conformance with, or applications for authorizations from, all local, regional, State, or Federal requirements of any governmental agency, or other body with jurisdiction over any aspect of the proposed project. If all such evidence of authorizations and permits has not been obtained then evidence of applicable correspondence and records of pre-application conferences and other such evidence as shall document the securing of the necessary permits and authorizations shall be submitted;
(b) A description of the geographical location of the acceptable use project, identifying the name of the municipality in which the acceptable use project is located and the street address of the project;
(c) A copy of the tax map showing the lot and block numbers of the acceptable use project site(s) and of all adjoining properties;
(d) A description of the current use of the acceptable use project site(s) and of all adjoining properties;
(e) A site plan where the dredged material, admixtures, and product are managed or used, plotted on a USGS topographic map. The site plan map shall be prepared, signed, and sealed by a licensed New Jersey professional engineer or surveyor. The site plan must:
i. Identify the placement of all equipment, buildings, activities, and areas related to the receipt, loading, unloading, temporary storage, and use of all dredged material, admixtures and products;
ii. Be drawn to a scale no greater than one inch equals 100 feet;
iii. Indicate the routing of vehicles between the dredging project or source of admixtures and the acceptable use project and all nearby roadways serving the site, as well as the traffic flow within the project site. Such routing must ensure safe and efficient vehicular and pedestrian circulation, parking, and loading and unloading of containers;
iv. Delineate floodplains as defined at 7:13-1.2;
v. Indicate the location of regulated wetlands, New Jersey Pinelands, and any other environmentally sensitive areas;
vi. Identify the direction of water runoff both on site and off site and the screening and landscaping on the site;
vii. Indicate topographic contours, drawn at two-foot intervals;
viii. Indicate all site access controls to be employed at the project; and
ix. Contain an original current 7.5 minute USGS Quadrangle map with the boundary of the acceptable use project plotted thereon. The map shall delineate any public access roads to the site and any streams, ponds, or other potential sensitive receptors such as, but not limited to, hospitals, schools, shopping centers, and other areas of public or private use within a one-half-mile radius of the site;
(f) A description of the type(s) and number of any containers that will be used for the project and the type and means of storage and staging of the containers;
(g) A description of any treatment or processing of the dredged material, admixtures, and product at the acceptable use project;
(h) A copy of the deed of record establishing ownership of the acceptable use project property or, if the applicant is a person other than the landowner, a legal agreement (for example, a lease) to use the real property for the purpose of operating the acceptable use project; and
(i) A description of any past or ongoing regulatory activity at the acceptable use project;
3. The schedule for initiation and completion of the acceptable use project;
4. A thorough description of the destination of all admixtures, products, or wastes that will be moved from the site of use, the purpose for such disposition, and copies of any State or other authorizations, or applications for those authorizations, required for receipt or use of such materials at the disposition site; and
5. The Department may specify and require additional information from the applicant in order to ensure that the proposed acceptable use and all activities related to that use will meet the requirements of the AUD.
IV. OPERATING CONDITIONS
A. The AUD shall include, but not be limited to, the following provisions and conditions.
1. Any control provisions, including institutional controls such as, but not limited to, a Declaration of Environmental Restriction (DER), and engineering controls as necessary to protect human health and the environment;
2. Specific operational requirements including; hours of operation, truck routing, dust control provisions, and noise limitations;
3. Production criteria including admixture quality determination procedures, admixture quality limitations and blending ratios, and quality control procedures and criteria;
4. Product application criteria such as depth of application, application conditions, maintenance, soil erosion and sediment control requirements, and site condition monitoring provisions; and
5. Any other requirements and limitations for use of admixtures, products, or other materials, and operation of the acceptable use project as shall be determined by the Department on a case-by-case basis.
B. The owner/operator of an acceptable use project shall submit on an annual basis, but not more than 13 months from the issuance of an AUD by the Department and any 13-month anniversary of such issuance, during the operation of the acceptable use project and for the year following the last activity at the project, a report to the Department detailing the amount of all materials used, the date(s) of such use, the location(s) of the use, a summary of all violations if any local, State or Federal requirements including violations of the AUD issued by the Department, and any other information as specified by the Department in the AUD, to the address set forth at N.J.A.C. 7:7-1.6 to the attention of the Office of Dredging and Sediment Technology.
C. The dredged material processing facility owner/operator shall maintain the following records at the facility site at all times and shall file reports as follows:
1. Daily records shall be maintained that shall note the vehicle plate number, material quantity, source, destination facility name, and quantity, by vehicle, of all dredged material, admixtures, and product received, transferred, and shipped at the facility. The records shall specify the source for every shipment of dredged material and admixture received and the destination of every shipment of any material and/or product out of the facility. Quantities of dredged material, admixtures, and product shall be listed in tons and cubic yards as appropriate; and
2. The daily records shall be compiled into standard quarterly reports, which shall be submitted to the address below within 20 days of the end of each calendar quarter to the Department.
D. The owner/operator shall be responsible for ensuring that its agents, including all successors and assigns involved in the use of dredged material or products produced at the acceptable use project, including, but not limited to, all brokers, transporters, end users, and owners and operators of use and management sites, are aware of, and properly manage the respective materials in strict compliance with, any conditions of specified in the AUD.
E. Access to any acceptable use project shall be restricted to project operators, vehicle operators, and authorized visitors only. Effective security procedures shall be implemented to control entry and exit at all times.
F. Dredged materials, admixtures, and products in any type of container at an acceptable use project shall not emit odors that are detectable at the project or beyond the perimeter of the project.
G. All dredged material, admixture, and product containers staged or stored at the acceptable use project shall be secured at all times in a manner that prevents unauthorized access to the containers and their contents.
H. The Department's designated representatives and inspectors shall have the right to enter and inspect any building or any other portion of any acceptable use project at reasonable times. This right to enter and inspect includes, but is not limited to:
(a) Observing and sampling any materials on site;
(b) Photographing any portion of the project, vehicles, containers, and container contents;
(c) Investigating an actual or suspected source of pollution of the environment;
(d) Ascertaining compliance or noncompliance with the statutes, rules, regulations, or policies of the Department, including conditions of the project's AUD or any other permit or certificate issued by the Department; and
(e) Reviewing and copying all applicable records described in this section, which shall be maintained at the project at all times and shall be made available on request to Department representatives and inspectors at all reasonable times for review and inspection.
I. All acceptable use projects shall comply with the requirements of the Federal Occupational Safety and Health Administration and all other applicable standards of any agency for the operation of the project and the maintenance of the health and safety of the employees or other persons.
J. Routine housekeeping and maintenance procedures shall be implemented at the acceptable use project to prevent the accumulation of dust and debris, and to maintain general cleanliness throughout the site and in the working environment.
K. Any release or discharge of any material at the acceptable use project, except for such releases as are allowed pursuant to the AUD, must be immediately reported by the project operator or its designee to the DEP Emergency Response 24-hour Hotline at (877)WARN DEP (927-6337). The report must specify the type of substance discharged in estimated quantity, the nature of the discharge, the location of the discharge, any action being taken or proposed to be taken in order to mitigate the discharge, and any other information concerning the incident the Department may request at the time of notification.
L. The acceptable use project owner/operator shall designate an on-site emergency coordinator who shall be available during all hours of operation for the purpose of handling emergency situations, such as, but not limited to, spills, discharges, or releases of materials at the project.
M. The acceptable use project owner/operator shall develop and maintain at the site an Operations and Maintenance (O&M) Manual that shall describe all operating conditions and procedures of the site operation. The O&M Manual shall be made available to all employees and personnel at the site. The O&M Manual shall be prepared in accordance with the standards applied at N.J.A.C. 7:26-2.10(b)9.
N. All dredged material processing facilities shall operate in accordance with the additional standards that follow:
1. Dredged material and admixtures shall not remain at any dredged material processing facility for more than 30 days or as otherwise specified by the Department in the AUD.
2. The Department will specify the quantities of dredged material and admixtures allowed at any dredged material processing facility in the AUD.
3. Dredged materials or admixtures received, stored, processed, and transferred at any dredged material processing facility shall be held at all times in containers that do not leak any liquids or material.
4. Dredged material products stored at a dredged material processing facility must be in compliance with the provisions of Sections III.M.1,2 and III.N of this attachment and other requirements as specified by the Department in the AUD. Storage locations must include adequate mechanisms to manage storm water, control dust generation and odors, limit access to the storage areas, and prevent the dispersal of product into the environment.
5. Dredged material, admixtures, products, wastes, or other materials leaving dredged material processing facilities, that are destined for an acceptable use site or any site out of State, must be authorized in advance for that use pursuant to the requirements and any limitations stipulated in the AUD for the dredged material processing facility.
O. Dredged material, admixtures, products, or any other materials at an acceptable use project shall be managed at all times to prevent migration in stormwater runoff, and control odors and dust generation per conditions as specified by the Department in the AUD.
P. Dredged material, admixtures, products, or any other materials that cannot be used at the acceptable use project in accordance with the AUD are solid wastes, and those wastes as well as any other specific wastes produced at the project site shall be managed as solid waste pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. Use of these wastes at the acceptable use site or off site must be approved in advance by the Department pursuant to the Department's beneficial use regulations at N.J.A.C. 7:26-1.7(g).
V. LIMITATIONS and COMPLIANCE
A. The Department shall suspend all operations at an acceptable use project if it determines that termination is necessary to protect human health and the environment pursuant to the Coastal Zone Management Rules at N.J.A.C. 7:7, other criteria as specified by the Department in the AUD, and other environmental standards pursuant to State law.
B. The Department may revoke the AUD if the owner/operator fails to operate in strict compliance with the requirements of its AUD at all times, or any law or regulation in any way related to the AUD, or the Department determines there is sufficient cause for revocation in order to protect human health, safety, and the environment.
C. Any person that conducts any of the activities as specified herein as requiring the authorization of the Department through issuance of an AUD, or that accepts unauthorized dredged material for any purpose as shall be determined by the Department, shall be deemed to be in violation of the requirement to obtain an AUD for such activity, and shall be subject to all applicable penalties pursuant to law.
D. An AUD shall not be construed as granting permission to fill, disturb, or conduct a regulated activity in: flood-plain areas, tidelands, freshwater wetlands, flood hazard areas or coastal wetlands, tidal areas, or surface water runoff conditions. Any such activity must be conducted in accordance with all necessary advance site-specific authorizations and permits from, and as determined by, the Department and other relevant agencies.
E. An AUD shall not constitute an endorsement of, or recommendation for, the use of dredged material or any product containing dredged material. No uses of dredged material or products produced at acceptable use projects are authorized by the AUD unless expressly stated therein.
F. Dredged material, admixtures, and products that are not managed and used in strict accordance with all of the conditions and requirements of the AUD are solid waste and shall be subject to the requirements of N.J.S.A. 13:1E-1 et seq., known as the Solid Waste Management Act, which shall include the assessments of penalties for violations thereof.
G. An AUD is not transferable to any person.
H. Any deviation in the information provided to the Department on which an AUD is based may void the AUD, at the discretion of the Department, which would require a reevaluation and may make any person subject to enforcement action pursuant to applicable laws and regulations.
I. The Department reserves the right to require or conduct testing at any time to monitor or enforce the provisions of the AUD.
J. An AUD shall be granted without prejudice and shall not affect any existing or future enforcement action the Department or any other agency may take against any person.
K. If the Department determines that dredged material, admixtures, or products are used in any manner, by any person, that violates or exceeds the scope of the conditions granted in the AUD the owner/operator shall be first responsible for the site's proper remediation, as well as for the remediation of all other media affected, and second, any other person or persons responsible in any way for the use of the material as shall be determined by the Department. Specifically, the Department may take action, and may require the owner/operator to take action, at any time if more stringent standards or other criteria are adopted, or standards or criteria were improperly applied to a use application by any person.
N.J. Admin. Code Tit. 7, ch. 7, att. G