New Jersey P.L.1993, c.89

AN ACT concerning violations of air pollution control permits and supplementing P.L.1954, c.212 (C.26:2C-1 et seq.).

BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:

C.26:2C-19.1 Findings, declaration. 1. The Legislature finds that equipment in facilities regulated by the "Air Pollution Control Act (1954)," P.L.1954, c.212, may malfunction or fail to perform optimally, even when carefully maintained and operated; that violations of the act may occur due to an unforeseeable and unavoidable malfunction, during equipment start-up or shut-down, or during necessary equipment maintenance due to the inherently intricate nature of mechanical equipment; and that these violations should not be accorded penalties as long as any resulting air emission causes no potential threat to the public health, welfare or the environment. The Legislature therefore finds and declares that it is the policy of this State to protect the public health, welfare and the environment, to promote the careful operation and maintenance of equipment in facilities regulated by the "Air Pollution Control Act (1954)," and to reduce the unnecessary burden of monetary penalties for violations caused by a non-recurring equipment malfunction, equipment start-up, or equipment shut-down or during necessary equipment maintenance by providing an affirmative defense to liability for penalties when a facility is operated and maintained carefully, when all reasonable steps are taken to minimize emission levels caused by a violation, and when the emissions do not cause a potential threat to the public health, welfare or the environment.

C.26:2C-19.2 Entitlement to affirmative defense. 2. a. A person shall be entitled to an affirmative defense to liability for penalties for a violation of a condition, emission rate, limit, or standard, required pursuant to a permit issued pursuant to P.L.1954, c.212 (C.26:2C-1 et seq.) or a violation of any rule or regulation adopted pursuant to P.L.1954, c.212, when the violation occurs as a result of an equipment malfunction, an equipment start-up, or an equipment shut-down, or during the performance of necessary equipment maintenance. A person shall be entitled to this affirmative defense only if the person complies with the provisions of subsection b. of this section. b. A person asserting an affirmative defense pursuant to subsection a. of this section shall notify the department of the violation by 5:00 p.m. of the second full calendar day following the occurrence, or if due diligence was exercised to discover the violation, by 5:00 p.m. of the second full calendar day after becoming aware of the occurrence, and, within 30 days thereof, shall submit written documentation on the circumstances of the violation and demonstrating as applicable, that: (1) the violation occurred, and was caused by an equipment malfunction, an equipment start-up, or an equipment shut-down, or during the performance of necessary equipment maintenance, as applicable; (2) the facility was being operated with due care; (3) the violation did not result from operator error or failure to maintain the equipment with due care; (4) the person has taken all reasonable steps to minimize levels of emissions caused by the violation; and (5) with respect to violations caused by a malfunction, the malfunction is not a part of a recurrent pattern.

C.26:2C-19.3 No entitlement to affirmative defense. 3. A person shall not be entitled to an affirmative defense to liability pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2) for any violation that causes the presence in the outdoor atmosphere of one or more air contaminants in a quantity or concentration which poses a potential threat to public health, welfare or the environment.

C.26:2C-19.4 Construction of act. 4. Nothing in P.L.1993, c.89 (C.26:2C-19.1 et seq.) shall be construed to limit or alter the responsibility of a person who causes a release of air contaminants to notify the department immediately as required pursuant to subsection e. of section 19 of P.L.1954, c.212 (C.26:2C-19).

C.26:2C-19.5 Rules, regulations; unavailability of affirmative defense. 5. a. The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations that establish limitations upon the maximum frequency and duration of violations resulting from equipment malfunctions, equipment start-ups, equipment shut-downs, and the performance of necessary equipment maintenance operations for which an affirmative defense may be asserted pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2). The limitations shall be based upon the operating history of similar sources on an industry basis. b. The affirmative defense established pursuant to section 2 of P.L.1993, c.89 (C.26:2C-19.2), shall not be available with respect to violations arising from equipment malfunctions, equipment start-ups, or equipment shut-downs, or during necessary equipment maintenance operations, that occur more frequently or persist for a longer duration than the maximum limitations established pursuant to subsection a. of this section.

6. This act shall take effect immediately.

Approved March 23, 1993.